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A MANUAL 


FOR 

POLICEMEN 


CONSTABLES, MARSHALS 


AND 

OTHER MINISTERIAL OFFICERS 

IN OHIO 

WITH PRACTICAL INSTRUCTIONS AND FORMS 



FLORIEN GIAUQUE, A.M., LL.D. 

»> 

Editor of “The Revised Statutes of Ohio;” Author of “ Settlement of 
Decedent’s Estates,” “A Manual for Guardians 
and Trustees,” etc. 


SIXTH EDITION. 


CINCINNATI 

THE W. H. ANDERSON COMPANY 
1914 



*4V757I 

.0-5Q4- 


I9i4 

^r/ 2 


Copyright, 1891, 

BY 

Robert Clarke & Co. 


Copyright, 1914, 

BY 

The W. H. Anderson Co. 


MAR 12 1914 



©CI.A36930 5 
" 2 -— 





PUBLISHERS’ STATEMENT. 


This book, and its price, should he judged, not by ita 
size, but by its contents. It has been made small by 
using small, but clear type, by arranging it compactly, by 
using thin, but good paper, and by leaving narrow margins, 
so that the book may be easily carried in the pocket. It 
could easily be arranged to make it twice as bulky, without 
adding one word to its contents. Judged by the amount 
of matter in it, it is one of the cheapest law books pub¬ 
lished. 















* 


I 







I 










* 


PREFACE. 


Very many more law-suits, involving the rights of 
property, the liberty or imprisonment of the individual, 
the good order of the community, and the preservation of 
the public peace, are tried and finally decided in magis¬ 
trate’s courts than in all others combined. Far more 
frequently than any others, the ministerial officers of 
magistrates’ courts—their constables, marshals, policemen, 
watchmen, deputies, etc.—must arrest and thrust into 
prison, both the citizen and the stranger; and must seize 
and sell, or otherwise interfere with, some or all of their 
property. In many cases these arrests must be made on such 
officer’s own judgment, without the shadow of a command 
from any other officer. In other cases, he can act only 
when a writ, proper in form, is issued to him by an of¬ 
ficer having j urisdiction over the matter, at the time and in 
the place of its occurrence. He must know, at his peril, 
whom, when and how to arrest, and what for; what and 
whose property he may seize, and when and where; and 
when and where he must also, at his peril, refrain. 

How important, then, that each such officer should have 
at hand, in convenient form, the means of knowing, not 
only in a general way, but of learning at any particular 
time or place, just what are his duties, powers, rights, 
etc., and how he must proceed, so that he may fully do his 
duty as an officer, without violating the rights of others, 
and subjecting himself to the penalties imposed on him 
when he acts outside the limits of his powers! 

To furnish a pocket guide that would meet, as nearly 
as possible, the requirements indicated above, containing 
within itself, so arranged as to be quickly found, the law, 
the forms, and instructions that such officer needs to enable 
him to act intelligently on any occasion, has been the 
writer’s object in preparing this book. 

Florien Giauqub. 






PREFACE TO THE FOURTH EDITION. 


This edition contains all modifications required by the 
legislation found in Volumes 88 to 92, inclusive, of Ohio 
Laws, and notes of pertinent Ohio decisions reported to the 
date hereof, including 54 Ohio State Reports, as well as 
of our lower courts published to the same time. It also 
contains additional provisions more especially adapting it 
to the needs of police courts and their officers in cities and 
vilages. The other principal legislative changes are found 
in chapter 32, relating to crimes and offenses. 

It may be of some interest to the buyer and user of 
this book that, although it has had a large sale to law¬ 
yers and officers, and many complimentary things have 
been said about it, not one suggestion of change and not 
one complaint has been received or heard of by the writer; 
and that, although it has all been re-read with a view to 
making such other changes in the text as might seem ad¬ 
visable after the lapse of about seven years, not one word 
of it has been changed except to comply with said new 
laws and decisions. Even these changes are few, except 
in chapter 32. Florien Giauque. 

Cincinnati, October , 1897. 


PREFACE TO THE FIFTH EDITION. 


The fifth edition of this work conforms it to the living 
legislation in Volumes 94 Ohio Laws and earlier, and to the 
decisions in Volumes 62 Ohio State Reports and earlier, and, 
as far as deemed advisable, to the decisions of our lower 
courts published to this date. Florien Giauque, 

Cincinnati, April, 1901. 




















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PREFACE TO SIXTH EDITION. 


Since the Fifth Edition of this work was issued, the 
entire statute law of Ohio has been re-codified—many of 
the statutes changed, many others enacted and some re¬ 
pealed. Numerous things, not formerly considered offenses, 
have now been declared to be such. The constitution of 
Ohio has been materially amended and many decisions 
of our courts have been rendered and published. For 
these reasons the need of this Sixth Edition is apparent. 
It has been made to conform to the General Code of Ohio 
of 1910 and to the laws passed since the General Code’s 
adoption and ail decisions have been brought down to date 
of publication. 

The Author is indebted for the making of this revision 
to W. S. Walker, of the Cincinnati Bar, who has done 
similar work on other books, and is himself an author 
of one of the most useful books in law literature— 
“Walker’s American Law of Real Estate Agency.” 

Florien Giauque. 

Cincinnati, Ohio, January 22, 1914. 





















































TABLE OF CONTENTa 


CHAP. PAG*. 

1. Election, Appointment, Oath, Bond, etc., of Con¬ 

stable, Marshal, Police, etc. 1 

2. Jurisdiction of Magistrates as Affecting Minis¬ 

terial Officers. 9 

3. Powers, Duties, Rights, Relative Place, etc., 

of Constables, Marshals, Policemen, etc., gen¬ 
erally. 18 

4. Law Suits, or Actions at Law, Generally, the Va¬ 

rious Kinds of, their Incidents and Progress... 31 

5. Writs, Copies thereof, and their Service Gener- 

erally—To what Extent Officers Protected by.. 35 

6. Summons, Return of, etc. 42 

7. Subpena. 49 

8. Summoning Jury, having Charge thereof, etc_ 53 

9. Trial of Case and Duties thereat. 56 

10. Attachment for Witness and Juror. 57 

11. Execution, Issuance of, Kinds and Forms of. 59 

12. Execution Continued—Property Exempt from... 65 

13. Execution Continued—What Property Officer 

may Take, how, where, etc. 71 

14. Execution Continued—Levy, what Constitutes 

a, and what not; Care and Custody of Goods; 
Redelivery Bond, etc. 78 

15. Execution Continued—Liabilities and Remedies 

of Officer as to, Issued to Him. 85 

16. Execution Continued—Sale of Goods Levied on, 

Inventory of Goods Sold, etc. 89 

17. Return of Execution. 94 

18. Trial of Right of Property Levied on or Attached 

when Claimed by a Third Person—Indemnify¬ 
ing Bond. 100 

















TABLE OP CONTENTS. 


CHAP. PAGE. 

19. Attachment of Defendant’s Property. 103 

20. Replevin. 116 

21. Forcible Entry and Detainer... 125 

22. Arrest Generally, and General Principles Relating 

thereto. 130 

23. Privilege from Arrest. 143 

24. As to Forcibly Entering Houses, Breaking Doors 

to Serve Writs, Make Arrest, etc...... 147 

25. Arrest in Civil Cases before Judgment. 151 

26. Arrest in Civil Cases after Judgment. 159 

27. Arrests for Contempt. 164 

28. Arrests in Criminal Cases and Proceedings there¬ 

under . 166 

29. As to Breaches of the Peace, including Riots; 

Officers’ Duties, etc., as to. 174 

30. Search Warrant, and Proceedings thereunder_ 178 

31. Peace Warrant, and Proceedings thereunder. 181 

32. Crimes and Offenses, what are. 183 

33. Misconduct of Officers and of Others toward 

Them, etc. 216 

34. Cruelty to Children and Animals. 219 

35. Domestic Animals at Large ; Strays and Drifts... 224 

36. Elections, and Ministerial Officers’ Duties as to.. 232 

37. Depositions, and same Officers’ Powers and Duties 

as to. 235 

38. Release of Sureties of Constables, Marshals, etc.. 240 

39. Fees, Generally.241 

40. Miscellaneous Provisions... 248 




















AC A_ 1ST TJ A. L 

; 

FOR 

CONSTABLES, MARSHALS, ETC. 


CHAPTER 1. 

ELECTIONS, APPOINTMENT, OATH, BOND, ETC., OF 
CONSTABLE AND MARSHAL. 

[All sectional references are to the General Code of Ohio 

of 1910.] 


Of Constables. 

1. Number of, and how determined. The township trus¬ 
tees determine how many constables must be elected in 
each township.i (As to constables in towns, see paragraph 
45, below.) 

2. Election and term of office of. Constables are elected 

biannually for a turn of two years, commencing on the 
first day of January next after their election, and continue 
in office 2 until their successors are elected, or appointed, 
and qualified. , 

3. Who may be elected. No person can be elected or 
appointed to an office in this state who is not an elector; 2 
and as only male citizens over twenty-one years of age 
who have lived in the state one year, and in the county, 
township or ward, such time as the law provides, can be 
electors; 4 none but such persons can be elected or ap¬ 
pointed as constable, marshal, policeman, or other officer. 

1 § (3327). 

2 § 3268, Constitution of Ohio, Art. X., prargraph 4.. State v. 
Ward, 17 O. S. 544. 

“Where the corporate limits of a city or village become identical 
with that of the township, township offices shall be abolished, and the 
duties thereof shall thereafter be performed by the corresponding officers 
of the city or village, except that justices of the peace and constables 
shall continue the exercise of their functions under municipal ordi¬ 
nances, providing offices regulating the disposition of their fees, their 
compensation, clerk and other officers and employes. Such justice and 
constable shall be elected at municipal elections. All property, moneys, 
credit, books, records and documents of such township shall be delivered 
to the council of such city or village. All rights, interest or claim in 
favor of or against the township may be enforced by or against the 
corporation.” § 3512. 

3 Ohio Constitution, Art. XV., § 4. 

4 Ohio Constitution, Art. V., § 1; United States Constitution, XIV. 
and XV. amendments. 






2 


CONSTABLES, MARSHALS, ETC. 


4. Oath of office; notice of election. Each person 
chosen or appointed to an office under the constitution or 
laws of this state, must take an oatii of office. 1 r l he town¬ 
ship clerk must, within ten days after the election or ap¬ 
pointment of the constable, notify him thereof and require 
him to appear before such clerk or other officer authorized 
by law to administer oaths, and take the required oath of 
office, and give bond, within ten days after such election or 
appointment.2 

5. Township clerk should administer oath of office. It is best 
to take this oath before the clerk, as it must be recorded by 
him, no matter who administers it. If administered by 
some other officer, he is required by law to make a certifi¬ 
cate of the oath to such clerk, who must then record the 
oath. 1 2 3 But this is more troublesome, is liable to be more 
expensive, and to be in part neglected, if not done before 
the clerk himself. 

6. Vacancy , how filled. Whenever a vacancy occurs in 
the office of constable, in any township, by death, removal, 
resignation, or non-acceptance of the person elected, or 
when there is a failure to elect, or when there is a vacancy 
from any other cause, the township trustees must appoint a 
suitable person to fill such vacancy until the next annual 
election for constable, and until a successor be elected and 
qualified. The constable so appointed must take a like oath 
and give a like undertaking, as is required in other cases of 
constables. 4 

7. Failure to take oath or give bond, vacates office. A consta¬ 
ble, and any other township officer, who, for ten days after 
receiving notice of his election or appointment, fails to take 
the oath of office, or, if bond is required, fails to give bond, 
will be deemed to have declined to accept, and the vacancy 
will be filled as in other cases. 5 

8. Penalty for refusing to serve , how collected. A person 
elected or appointed constable, who neglects or refuses to 
serve, must forfeit and pay to and for the use of his town¬ 
ship the sum of two dollars, to be recovered by an action 
before a justice of the peace of said township; and the 
township clerk must, in the name of such township, collect 

1 §§ 2, 3, 3263, 3331; also Constitution of Ohio, Art. XV., § 7, and 
paragraph 6 below. 

Each person chosen or appointed to an office under the constitution 
or laws of the state, and each deputy or clerk of such officer, shall, 
before entering upon the discharge of his duties, take an oath of office; 
but the failure to take such oath does not affect his liability or the 
liability of his sureties, § 2. 

The word oath includes affirmation; and, whenever an oath is re¬ 
quired or authorized by law, an affirmation, in lieu thereof, may be 
taken by any person having conscientious scruples to taking an oath; 
and an affirmation has the same force and effect as an oath. § 1. 

2 § 3263. 3 §§ 2, 5, 3263, 3264. 

*§§ 3261 (87 v. 119), 3329, 3330. 


5 § 3265. 


CONSTABLES. 


3 


this money, by suit, if necessary, and pay it over, when col¬ 
lected, to the township treasurer; but no person can be 
compelled to serve as constable two years in succession. 1 

9. Bond , requisites of, deposit of. Before entering upon the 
discharge of his duties, each constable must give bond to 
the state in a sum not exceeding two thousand dollars, nor 
less than five hundred dollars, with sureties resident of the 
township, the amount of the bond and the sureties therein 
to be approved by the trustees, conditioned for the faithful 
and diligent discharge of his duties. This bond must be 
deposited with the township clerk. 2 

10-15. Form of constable's bond and oath: 

Know all men by these presents: That we, A. B., as prin¬ 
cipal, and C. D. and E. F., as sureties, are held and firmly 

bound unto the State of Ohio, in the sum of- dollars, 

to be paid to the state aforesaid, for the payment whereof 
well and truly to be made, we jointly and severally bind 
ourselves, our heirs, executors and administrators firmly by 
these presents. 

Signed by us this - day of -, A. d. 19 —. 

The condition of the above obligation is such, that, 
whereas, the said A. B. has been duly elected and qual¬ 
ified as constable of - township, -county, and State 

of Ohio, for the term of two years from the - day of 

April, a. d. 19—, and until his successor is elected, or ap¬ 
pointed and qualified. 

Now, if the said A. B. shall faithfully and diligently 
discharge his duties as said constable, then this obligation 
will be void; otherwise it will be and remain in full force 
and effect. A. B. 

C. D. 

E. F. 

The sureties on the above bond, and its amount, approved 
by us: 

G. H.,) 

I. K., [-Trustees of said Township. 

L. M.,J 

16-19. The State of Ohio, \ 

-County, -Township. / 

Before me, N. 0., clerk of said township, personally 
came A. B., who being duly sworn according to law, says 
that he will support the constitution of the United States 
and the constitution of the State of Ohio; and that he 

will faithfully discharge his duties as constable of -- 

township, - county, Ohio, during his continuance in 

said office, and until his successor is chosen and qualified. 

A. B. 

Sworn to before me and signed in my presence., on this 

- day of -, a. d. 19—. N. O., Township Clerk. 

_ 1 § 3267. 2 § 3328. 








4 


CONSTABLES, MARSHALS, ETC. 


20. Bond must be recorded and filed. As sooji as the trus¬ 
tees approve such bond, it must, together with the con¬ 
stable’s oath, be first recorded by the township clerk in a 
book kept for that purpose, and then filed by the clerk in 
his office. 1 As the bond and oath must each be recorded in 
the same book ,2 it is convenient and customary to have 
both of them on the same paper. 

21. Clerk’s fees as to bond. The clerk is entitled to a 
fee of fifty cents from the constable for recording such 
b o "d. and the same fee from each person demanding a copy 

of it.3 


Of Marshals. 

22. Election and appointment of marshals. Marshal 
shall be elected for a term of two years, commencing on 
the first day of January next after their election, and shall 
serve until their successors are elected and qualified; and 
provision is made by the laws for filling vacancies that 
may occur, either by appointment by the mayor, or by 
special election to be held for that purpose.* 

24. Bond. The marshal of a village or city must give a 
bond to his corporation before entering on the duties of 
his office, to be approved by the mayor, and in such sum as 
the council may require; new or additional bond may also 
be required by the council at its discretion. Each of these 
bonds must be deposited with the clerk of the corporation, 
and be recorded, filed away and preserved by him. 5 

25. Oath of office. Each marshal, whether elected or ap¬ 
pointed, must, before entering on the discharge of his du- 

* §§ 3305, 3302. 2 § 3302 . 

3 § 3307. A copy of such recorded bond, certified by such clerk, 
must be admitted in any court in this state, as evidence, the same as 
the original bond. § 3306. 

4 § 4384. It is necessary that a certificate be filed showing that 
there is money in the treasury sufficient to pay the salaries of deputy 1 
marshals and the like before such marshals are appointed, Urig v,: 
Reading, 8 N. P. 573, 11 O. D. (N.P.) 704. 

As to vacancy occurring in consequence of neglect or refusal to 
give bond or take the required oath of office, see §§ 4242-4245. As to 
removal for improper conduct, etc., see §§ 4670-4675. The length of 
these provisions makes it inconsistent with the plan of this book td 
give them or their substance in full. 

3 §§ 4667, 4668, 4669. i , 


MARSHALS. 


5 


ties, take an oath to support the constitution of the United 
States, the constitution of Ohio, and that he will faithfully, 
honestly and impartially discharge the duties of the office. 1 2 

26-30. Form of marshal's bond, and oath: 

Know all men by these presents: That we, A. B., as prin¬ 
cipal, and C. D. and E. F. as sureties, are held and firmly 

bound unto the village (or city) of-, in-county and 

State of Ohio, in the sum of five hundred dollars, to be paid 
to the village (or city) aforesaid, for the payment whereof 
well and truly to be made, we jointly and severally bind 
ourselves, our heirs, executors and administrators firmly 
by these presents. 

Signed by us this -day of - A. d. 19—. 

The condition of the above obligation is such, that, 
whereas, the said A. B. has been duly elected and qual¬ 
ified as marshal of said village (or city) of - in - 

county and State of Ohio, for the term of two years from 

the- day of April, A. d. 19 — , and until his successor is 

qualified. 

Now, if the said A. B. shall faithfully perform the duties 
of the office of marshal of said village (or city) during 
his continuance in said office for said term, then this obli¬ 
gation will be void; otherwise it will be and remain in full 
force and effect. A. B. 

C. D. 

E. F. 


The above bond is approved by me : 

G. H., Mayor of said village (or city). [seal.] 

31-34. The State of Ohio, \ _ 

-County. / ss * 

Before me, I. K., a notary public in and for-county, 

Ohio (or other officer as may be), personally came A. B., 
who, being duly sworn according to law, says that he 
will support the constitution of the United States and 
the constitution of the State of Ohio; and that he will 
faithfully, honestly, and impartially discharge his duties as 

marshal of the village (or city) of-, in-county, Ohio, 

during his continuance in said office, and until his successor 
is chosen and qualified. A. B. 

Sworn to before me and signed in my presence, on this 

- day of -, a. d. 19—. 

[seal.] 2 I. K., Notary Public as aforesaid. 

35. Bond must be filed and recorded. T he marshal’s 
bond must be filed with the clerk of the corporation, and 
must be recorded by the clerk in the book kept for the 
record of the municipal officers.^ 


1 8 4666. See also pars. 3 and 4 above, and notes to same. 

2 See par. 4 of Chap. 3. 8 §§ 5, 4669. 





6 


CONSTABLES, MARSHALS, ETC.' 


Of Special Constables. 

36. When and how justice may appoint. A justice of the 
peace may appoint a constable or constables for a special 
purpose, either in civil or criminal cases, whenever such ap¬ 
pointment may become necessary, in the following cases: 
First. Where there is no constable in the township: Second. 
In the case of disability of one of the regular constables in 
the township: Third. Where the constable therein is a 
party to the suit: Fourth. When, from the pressure of of¬ 
ficial business, the constables therein are not enabled to 
perform the duties required by the office. 1 

37. Record of appointment , and oath of special constable. The 
justice must make a memorandum of the appointment on 
his docket, and must require the person appointed to take 
an oath, as required in paragraph 4 of chanter l. 1 

* 38. Special constable for fairs, etc. On the application, 
of a state, county, township or independent agricultural 
society, or industrial association, or other association, or 
meeting of citizens for the purpose of promoting social 
or literary intercourse, a justice, of the peace may appoint 
a suitable number of special constables to assist in keeping 
the peace during the time when such society or assembly is 
holding its annual fair or meeting.2 

39. Special constables for f reeholders. A justice of the peace, 
within the state, upon the written application of any three 
freeholders of a township thereof, may appoint one or 
more special constables within such township, who must 
watch and guard the property of said freeholders, and pro¬ 
tect it from all unlawful acts; and in the discharge of their 
duty they have authority to make arrests. 3 

40. Record, compensation, etc. The justice making such 
appointment must make a memorandum thereof upon his 
docket; and it will continue in force for one year, unless 
sooner revoked by him. The constables appointed by vir¬ 
tue of this and the preceding paragraph, must be paid in 
full for their services by the freeholders for whose benefit 
they are appointed, and can receive no compensation ex¬ 
cept from said freeholders. 4 

41. In Lake Erie islands. When, in the opinion of a jus¬ 
tice of the peace in any township situated on and consisting 
in whole or in part of one or more islands in any lake in this 
state, or in township adjoining or abutting any lands or 
premises belonging to any state or national home for dis¬ 
abled volunteer soldiers in this state, or in any township 
adjoining or abutting any lands or premises belonging to any 
disabled volunteer soldiers’ home in this state, the consta¬ 
bles of his township are insufficient to maintain the peace 

i § 3331. 2 § 9912. a § 1738 . 4 § 1739. 


POLICEMEN, WATCHMEN, ETC. 


7 


and duly enforce the laws for the preservation of order 
therein, he may appoint any number of special constables, 
not exceeding ten, who will be conservators of the peace 
within such township, and have the same powers as are 
conferred by law upon constables in criminal causes; he 
must make a memorandum of such appointment upon his 
docket, and it will continue in force for one year unless re¬ 
voked by him; such special constables are to receive the 
same fees as are paid by law for similar services to regular 
constables in other cases. 1 

42. Court constables, duties and compensation. When, 
in the opinion of the court, the business thereof so requires; 
each court of common pleas, circuit (appellate) court, 
superior court, insolvency court, in each county of the 
state, and in counties having at the last or any future 
federal census more than seventy thousand inhabitants, 
the probate court may appoint one or more constables to 
preserve order, attend the assignment of cases in counties 
where more than two common pleas judges regularly hold 
court at the same time, and discharge such other duties as 
the court requires. When so directed by the court, each 
constable shall have the same powers as sheriffs to call and 
impanel jurors, except in capital cases. Each constable 
shall receive the compensation fixed by the judge or judges 
of the court making the appointment. In counties where 
four or more judges regularly hold court, such compensa¬ 
tion shall not exceed twelve hundred and fifty dollars each 
year, in counties where more than one judge and not more 
than three judges hold court at the same time, not to 
exceed one thousand dollars each year, and in counties 
where one judge holds court, two and one-half dollars each 
day, and shall be paid monthly from the county treasury on 
the order of the court. Such court constable, when placed 
by the court in charge of the assignment of cases, may 
be allowed further compensation not to exceed one thousand 
dollars as the court by its order entered on the journal 
determines. 2 


Of. Policemen, Watchmen, etc. 


43. In the large cities. There are separate laws concern¬ 
ing the appointment, bond, etc., of police officers, watchmen, 
etc., for each large city in the state; 3 but these laws are so 
long, and are so often changed, to meet the supposed chang¬ 
ing needs of such cities, or for other reasons, that it is not 
expedient to give them here. They may be found within 
the General Code of Ohio. 

1 § 13428 (90 v. 128). 2 §§ lfi22, 1023. 

3 That is, Cincinnati, Cleveland, Columbus, Toledo, Dayton, also 
Canton, Hamilton, Youngstown, Portsmouth, Akron, Lorain. 


8 


CONSTABLES, MARSHALS, ETC. 


45. Appointment of constables and other officers. Mu¬ 
nicipalities are authorized to adopt any one of three forms, 
by general vote, the manner in which their respective 
municipalities are to be governed, and under these pro¬ 
visions constables and other officers are appointed. 1 

46. The night watchmen and police must, before enter¬ 
ing upon their duties, give bond, with good and sufficient 
surety to the satisfaction of the mayor, for the faithful 
performance of their duties. 2 

47. In cities provisions are made for the appointment of 
subordinate officers of police and night watchmen under 
the rules of the civil service commission, after undergoing 
competitive examinations.^ To prevent the stoppage of 
public business, or to meet extraordinary emergencies, the 
mayor may make temporary appointments. 4 

1 103 O. L. 767. 2 §§ 4667. 4660. 

§§ 4479, 4481. State v. Lee, 10 N. P. (N.S.), 364, 365, 20 L. D. 
569; affd. w. o. 83 O. S. 518. * § 4488. 


JURISDICTION OF MAGISTRATES, ETC. 


9 


CHAPTER 2. 

JURISDICTION OF MAGISTRATES AS AFFECTING 
CONSTABLES, MARSHALS, POLICE OFFICERS, ETC. 


1. Constables, marshals, policemen, and other ministerial 
officers 1 must take notice, at their great peril in many cases, 
that the writs they serve, especially those depriving a per¬ 
son of his property, and more especially those depriving 
him of his liberty, are issued to them by a judicial officer 1 
who lias j urisdiction of the subject-matter of the writ. 2 It 
is, therefore, important for them to know who may command 
them to execute writs, and also what writs may properly be 
issued to them. For this reason, it is necessary to state 
sufficiently for the purposes above, the jurisdiction of 
justices of the peace, mayors, police judges, and certain 
other officers. 


Of Justice of the Peace. 

2. Their jurisdiction in civil cases is limited to the township 
in which they have been elected and reside, unless other¬ 
wise directed by law. 3 It extends generally to suits in 
which the debt or damages do not exceed three hundred 
dollars. 4 

3. It extends throughout their county, to administer any 
oath or affirmation, to issue subpena for witnesses and com¬ 
pel their attendance in causes or matters pending before 
them, or other cause or matter wherein they may be re¬ 
quired to take depositions; to try the action for the forcible 
entry and detention, or the detention only, of real prop¬ 
erty ; 5 to proceed against security for costs and bail for the 
stay of execution ou their dockets; to issue attachment and 
proceed against the goods and effects of debtors in certain 
cases; 5 to issue executions on judgments rendered by them; 
to proceed against constables failing to make return, mak¬ 
ing false return, or failing to pay over money collected on 
execution issued by such justice; to try the right of the 

1 For definition of, etc., see pars. 1 to 5, Chap. 3. The protection 
of the individual requires that the power given to a constable must be 
ev**rc'sed in a reasonable and prudent manner. Drolesbough v. Hill, 

o. S. 257, 264. 

2 See pars. 26-29, and notes thereto, Chap. 5. 

3 § 10223 (93 O. L. 146). They can not hold court outside of that 
Township. Ib. 

* McKibben v. Lester, 9 O. S. 627; Job v. Harlan, 13 O. S. 485. 


10 CONSTABLES, MARSHALS, ETC. 

claimant to property taken in execution or on attach¬ 
ment. 1 

4. In actions founded upon an undertaking, given in pur¬ 
suance of law in any civil proceeding pending before a jus¬ 
tice, such justice, or his successor in office, has jurisdiction 
co-extensive with his county, 2 

5. No householder or freeholder resident of the county 
can be held to answer a summons issued against him by 
a justice, in a civil matter, in any township of such county 
other than the one where he resides, except in the cases 
stated above, and the following. 

0. Where there is no justice of the peace for the township 
in which the defendant resides, or where the only justice 
residing therein is interested in the controversy, or where 
he is related, as father, father-in-law, son, son-in-law r , 
brother, brother-in-law, guardian, ward, uncle, nephew, or 
cousin, to either of the parties, and there is no justice in 
tile township competent to try the cause in the foregoing 
excepted cases, the action may be brought before any jus¬ 
tice of an adjoining township of the same county. 

7. Where the summons is accompanied with an order 
to attach property, the jurisdiction is co-extensive with the 
county, except in counties containing a city of the second 
grade "of the first class, or of the first grade, second class, the 
j urisdiction is co-extensive only with the township for which 
the justice was elected, unless jurisdiction of the defendant 
is otherwise obtained, as provided elsewhere in paragraphs 
5 to 9 in this chapter. 

8. Where two or more persons are jointly, or jointly and 
severally, bound i n any debt or contract, or otherwise jointly 
liable for the same action, and reside in different townships 
of the same county, the plaintiff may commence his action 
before a justice of the township in which any of the persons 
liable reside; but in joint actions against the makers and 
indorsers of notes, due bills, or bills of exchange, the action 
must be commenced in the township claimed by the plaintiff 
that aq. indorser indorsed the note or bill at the time it was 
made; and the jurisdiction depends thereon, before the 
justice takes jurisdiction, the plaintiff, or some person for 
him, must file an affidavit setting forth the fact. 

9. In cases of trespass to real or personal property, the 
action may be brought in the township where the trespass 
was committed, or in the township where the trespasser, or 
any one of several trespassers, resides. 3 

1 § 10224. Also, to take the acknowledgment of deeds, mortgages, 
and other instruments of writing, to solemnize marriages, to act in the 
absence of the probate judge in the trial of contested elections of 
justices of the peace, and to try actions against other justices of the 
peace for refusing or neglecting to pay over moneys collected in their 
official capacity, where the umouiit ciaimed does not exceed one hundred 
dollars. Ib. 

2 § 10228. 3 § 10225 (03 O. L. 147). 


JURISDICTION OF MAGISTRATES, ETC. 


11 


10. Justices have jurisdiction in actions for trespass on 
real estate where the damages demanded for such trespass 
do not exceed one hundred dollars. 1 

11. Suit may be brought against a railroad company be¬ 
fore a justice in the township in which the president of the 
company resides, or in any township in which the railroad 
owned or leased by the company is located, whether the 
company be foreign or domestic. All special laws in 
charters prescribing the place of suing railroad companies, 
or the place or manner of service of process on them, are 
abrogated. 2 

12. Justices have no jurisdiction of any action: (1) To 
recover damages for an assault, or assault and battery ; or, 
(2) In an action for malicious prosecution; or, (3) In 
actions against justices of the peace or other officers, for mis¬ 
conduct in office, except in the cases provided for in this 
chapter; or, (4) In actions for slander, verbal or written; 
or, (5) In actions on contracts for real estate; or, (6) In 
actions in which the title to real estate is sought to be re¬ 
covered, or may be drawn in question, except in cases pro¬ 
vided for in paragraph 10 of this chapter. 3 

13. Justice’s jurisdiction in criminal matters. Every justice 
of the peace is a conservator of the peace, and has juris¬ 
diction in criminal cases throughout the county in which 
he is elected and where he resides, on view, or on sworn 
complaint, to cause every person charged with the commis¬ 
sion of a felony or misdemeanor to be arrested and brought 
before him or some other justice, to inquire into the com¬ 
plaint, and either discharge the accused or bind him to ap¬ 
pear before the proper court, or otherwise dispose of the 
complaint, as provided by law. 4 He is authorized to hear 
complaints of the peace and issue search warrants. 4 

14. See also the important provisions of par. 9, Chapter 
34, and pars. 54, 55, of this chapter. 

Of Mayor. 

15. Civil jurisdiction of. The mayor of a municipal cor¬ 
poration has, within the limits of the corporation for whicK 
he is elected, all the jurisdiction of a justice of the peace. 
He has no civil jurisdiction outside of said limits . 6 

16. All laws relating to the procedure before justices, that 
is, as to how cases are to be tried, what writs may be 
issued, how served, etc., apply with equal force and effect 
to mayors. 6 

1 § 10231 (88 v. 2G2). 

* § 10230. This section also provides how service of summons must 
be made on such company. See par. 27, Chap. G. 

3 § 10232. These matters are more fully discussed in Swan’s Treatise^ 
Chap. 2, § 3, than space will permit here. 

* § 13422. 6 § 4548. 6 § 10491. 


12 


CONSTABLES, MARSHALS, ETC. 


17. Criminal jurisdiction of, generally. The mayor is a com 
servator of the peace throughout his corporation, and has 
jurisdiction of criminal cases provided below. 1 A person 
appointed by council to act as mayor during a temporary 
vacancy or during the disability of the mayor, has all the 
powers of the mayor while so acting. 2 See also pars. 50-52 
below. 

18. Same, in cities. In cities, other than those which have 
a police court, the mayor has final jurisdiction to hear and 
determine any prosecution for the violation of an ordinance 
of the corporation, unless imprisoment is prescribed as part 
of the punishment. 3 

19. He has final jurisdiction to hear and determine any 
prosecution for a misdemeanor, unless the accused is, by 
the constitution, entitled to a trial by jury ; and his juris¬ 
diction in such cases is co-extensive with the county. 4 

20. He has final jurisdiction in the cases mentioned in 
paragraphs 18 an'd 19 above, notwithstanding the right to a 
jury, if, before the commencement of the trial, the accused 
waive a jury trial. 5 

21. If the charge is the violation of an ordinance in a 
matter with respect to which imprisonment may be a part 
of the punishment, and the accused does not waive a jury, 
the mayor must, nevertheless, impanel a jury, and try the 
case on the affidavit, in the same manner, and with like 
effect, as misdemeanors are tried in the court of common 
pleas on indictment. 6 

22. If the charge is the commission of a misdemeanor, 
prosecuted in the name of the state, and the accused, being 
entitled to a jury, does not waive the right, the mayor 
may, nevertheless, impanel a jury, and try the case on the 
affidavit, in the same manner, and with like effect, as 
such cases are tried in the court of common pleas on in- 
dictment. 7 

23. The mayor may, however, decline to have such state 
case tried before him by a jury, if in his opinion the pub¬ 
lic interest will thereby be promoted, and, having entered 
that fact on his minutes, inquire into the complaint, dis¬ 
charge the accused, or recognize him to the court of com¬ 
mon pleas or probate court, as the case may be, or commit 
him in default of bail. 8 

24. In felonies, and other criminal proceedings not herein 
provided for, such mayor has jurisdiction and power 
throughout the‘county, concurrent with justices of the 
peace. 9 

1 § 454S. 3 § 4527. ‘ § 452S. 5 § 4530 . 

c § 4531. 7 § 4532. 8 § 4533. » § 4533. 


JURISDICTION OF MAGISTRATES, ETC. 


13 


25. Same, in villages. In villages, the mayor has final 
jurisdiction to hear and determine any prosecution for the 
violation of an ordinance of the corporation, unless im¬ 
prisonment is prescribed as part of the punishment. 1 

26. He has final jurisdiction to hear and determine any 
prosecution for a misdemeanor, unless the accused is by 
the constitution entitled to a trial by jury; and his juris¬ 
diction in such cases shall be co-extensive with the 
county. 2 For other final jurisdiction, see par. 54, this 
chapter. 

27. He has the jurisdiction in the cases mentioned in 
paragraphs 25 and 26 above, notwithstanding the right to a 
jury, if, before the commencement of the trial, a waiver in 
writing, subscribed by the accused, is filed in the case. 3 

28. He may summon a jury, and try the accused, in any 
prosecution for the violation of an ordinance, where im¬ 
prisonment is a part of the prescribed punishment, and the 
accused does not waive a jury; and in such case, judgment 
must be rendered in accordance with the verdict, unless a 
new trial, for sufficient cause, is granted. 4 

29. He may decline to permit the trial, mentioned in the 
last paragraph above, if in his opinion the public interest 
will be thereby promoted, and having entered that fact on 
his docket, proceed to inquire into the complaint, and dis¬ 
charge the accused, recognize him to the court of common 
pleas, or commit him in default of bail. 5 

30. In misdemeanors, prosecuted in the name of the 
state, he may summon a jury, and try the case, notwith¬ 
standing the accused has the right to a jury, which he has 
not waived, if a request for such trial, subscribed by the 
accused, is filed in the case before the commencement of 
the trial; and in such case the trial will be had on the 
affidavit, in the same manner and with like effect as a trial 
is had on an indictment for such offense in the court of 
common pleas. 6 

31. If in the opinion of the mayor the public interest will 
thereby be promoted, he may decline to permit such trial, 
and having entered that fact on his docket, proceed to in¬ 
quire into the complaint, and discharge the accused, recog¬ 
nize him to the court of common pleas or probate court, as 
the case may be, or commit him in default of bail. 7 

32. In felonies, and other criminal proceedings not herein 
provided for, such mayor has jurisdiction and power 
throughout the county, concurrent with justices of the 
peace. 8 See also pars. 50-54, below. 

Police Justice. 

33. In villages, the council may, upon the recommenda- 

1 s 4535. 2 § 4536. 3 § 4537. 4 § 4538. 

5 jj 4 ->;><). o § 4540. 7 § 4541. 8 § 4542. 


14 


CONSTABLES, MARSHALS, ETC. 


tion of the mayor, by an affirmation vote of two-tliirds of 
all the members elected, appoint some justice of the peace, 
resident of the corporation, police justice, who will, during 
the term of office of such mayor, unless removed on sug¬ 
gestion of such mayor by vote of all the members of the 
council, have concurrent jurisdiction of all prosecutions for 
violations of ordinances of the corporation, with full power 
to hear and determine the same, and will have the same 
powers, perform the same duties, and be subject to the 
same responsibilities, in all such cases as are prescribed 
in paragraphs 25-32 above, to be performed by and are 
conferred on the mayors of such corporations. 1 

34. Such justice of the peace so appointed will be 
styled “police justice,” in which style he must sign all 
process and records during the time he shall serve; he 
must have a seal, to be provided by the council, with the 
name of the state in the center, and the words “Police 

justice of the village of -,” around the margin.2 All 

the provisions of this chapter applicable to the mayor of 
a village apply to such police justice.® 

Police Judge (Also Municipal Court). 

35. In the city of Toledo there has been established a 
court having the jurisdiction previously exercised by the 
Police Court and Justices of the Peace. It is styled the 
Police and Justice Court. 1 Municipal courts, supplanting 
the former police courts and justices of the peace, but 
with more extensive powers than either, have been estab¬ 
lished in the cities of Cincinnati^ Cleveland,® ColumbusJ 
Dayton,s Hamilton 9 and Youngstown. 1 *) Under the amend¬ 
ed constitution establishing what is known as “home rule,” 
there is little similarity between the acts, and in order to 
ascertain the jurisdiction of each, each separate act must 
be examined. 

36. The jurisdiction of these courts to make inquiry in 
criminal cases is the same as that of a justice of" the 
peace. 


37. Prosecutions for offenses against the laws of the 
state shall be brought and conducted in the name of the 
state, and prosecutions for violations of city ordinances 
shall be brought and conducted in the name of the cor¬ 
poration. 11 

1 § 4544. 2 § 4545 . s § 4545 . 

4 §§ 1772 to 1700. 6 103 O. L. 270-201. 

7 103 O. L. 202-304. 8 103 O. L. 385-396. 

10 103 O. L. 354-369. « § 4578. 


c 103 O. L. G82-69S. 
0 103 O. L. 345-354. 



JURISDICTION' OF MAGISTRATES, ETC. 13 

38. In felonies committed within the county, the court 
has the powers of a justice of the peace to hear the case, 
and discharge, recognize, or commit; and if, upon such 
hearing, the court is of the opinion that the offense is only 
a misdemeanor, and that the court may entertain jurisdic¬ 
tion of it under paragraph 37 above, a plea of guilty of such 
misdemeanor may be received, and sentence and judgment 
pronounced; but if in such case the accused decline to 
enter such plea, court, without discharging the accused, 
must cause the prosecuting attorney to immediately file in 
the court an information against the accused for such mis¬ 
demeanor, on which charge he must be tried*in that court, 
after an entry has been made discharging him of the 
felony. 1 

39. Where the charge is the commission of a misde¬ 
meanor, and the proof shows that the party has committed 
a felony, the court, upon the proper affidavit being filed 
must discharge the party as to the misdemeanor, and ad¬ 
mit him to bail or commit him, as the case may be, for the 
felony. 2 

40. The court has power to issue process, preserve order, 
and punish contempts, summon and impanel jurors, grant 
new trials and motions in arrest of judgment, suspend exe¬ 
cution of sentenee upon notice of intention to apply for 
leave to file a petition in error, and such other powers inci¬ 
dent to the court of common pleas as may be necessary for 
the exercise of the jurisdiction herein conferred, and the 
enforcement of the judgments and orders of the court. 3 

41. Prosecutions lor offenses against the laws of the state 
must be brought and conducted in the name of the state, 
and prosecutions for violations of city ordinances must be 
brought and conducted in the name of the corporation. 4 
See also par. 54, below. 

Acting Police Judge. 

42. During the absence, inability, or disability of the 
judge, the mayor may hold the court, or may select for the 
purpose a reputable member of the bar, or a justice of the 
peace, residing within the city, who will have the jurisdic¬ 
tion and powers conferred upon judges of police courts, be 
styled “acting police judge,” and, as such, sign all process 
and records during the time he serves, and perform all 
other acts pertaining to the office; and in case the mayor 
hold the court, he will have all the powers and perform all 
the duties of the judge. 5 


i § 4583. 2 § 4584. 3 § 4570. < § 4578. 

5 § 14737; as to capacity of appointee under this act, see Molitor v. 


16 CONSTABLES, MARSHALS, ETC. 

Clerk of Police Court and Deputies, etc. 


47. The clerk of the police court has power, when an 
affidavit is filed with him for a peace warrant, search 
warrant, or charging any person with the commission 
of an offense, to issue a warrant under seal of said 
court to arrest the accused or search the place de¬ 
scribed ; to admit to bail any person accused of a misde¬ 
meanor or violation of an ordinance, for his appearance at 
the next setting of the police court or mayor, as the case 
may be ; and the bond given to continue until the case is 
finally disposed of; and also to admit to bail an> person ac¬ 
cused of a felony, when the amount of bail has been fixed 
by the court or mayor, as the case may be; to appoint one 
or more deputies, except in cities of the second class, to be 
approved by the council, to administer oaths and to per¬ 
form all other things which may be performed by the clerk 
of the court of common pleas in like cases. 4 

48. The deputy so appointed may perform any duty of 
his principal. 5 

49. So may any clerk temporarily and duly appointed 
during the clerk’s inability. 6 


Further, as to the Powers of the Mayor and 
other Officers in Cities and Villages. 

50. The mayor has, within the corporate limits, all the 
powers conferred upon sheriffs to suppress disorder and 
keep the peace; and he must award and issue all writs and 
process that may be necessary to enforce the administration 
of justice throughout the corporation, and for the lawful 
exercise of his jurisdiction, according to the usages and 
principles of law ; he must subscribe his name and affix his 
official seal to all writs, process, transcripts, and other official 
papers; and,in cities having no police judge, in the absence 
or during the disability of the mayor, he may designate a jus¬ 
tice of the peace to perform his duties m criminal matters, 
which justice will, during the time, have the same power 
and authority as the mayor. 1 

51. The officer presiding at any trial mentioned in this 
chapter has like power to punish contempts, and compel 
the attendance of jurors and witnesses, and to establish 
rules for the examination and trial of all cases brought be¬ 
fore him, as is or may be conferred on justices of the peace. 2 

52. When a fine is the whole or part of a sentence, the 
court, mayor, or president of the board of trustees, may or¬ 
der that the person sentenced shall remain confined in the 
county jail, workhouse, or prison, until the fine and costs 
be paid, or secured to be paid, or the offender be otherwise 
legally discharged. 3 

4 § 4594. 5 § 14738. « § 4597 (94 v. CO). 

1 § 4549. 2 § 4557. See Chaptei- 27. 3 §§ 4559 , 45G3. 


JURISDICTION OF MAGISTRATES, ETC. 


17 


53. The mayor has final jurisdiction in certain cases of 
cruelty and adulteration, as more fully stated in paragraph 
9, Chapter 34. 

Further, as to Justices of the Peace, Mayors, and 
Police Judges. 

54. A justice of the peace, mayor or police judge, shall 
have final jurisdiction within his county, in a prosecution 
for the violation of the laws relating to the protection, 
preservation or propagation of birds, fish and game, and 
shall have like jurisdiction in a proceeding for the con¬ 
demnation and forfeiture of property used in the violation 
of any such law.* 

55. The above section relates to the killing of 
certain birds; to the killing or catching of game; the 
killing of wild deer; exposing for sale of game unlawfully 
killed; disturbing pigeon roosts; using sneak boats, etc., in 
hunting; hunting or shooting on lands of another without 
permission of owner; using ferrets; and the unlawful 
killing or catching of fish. 

* § 1464. 




18 


CONSTABLES, MARSHALS, ETC. 


CHAPTER 3. 

POWERS, DUTIES, RIGHTS, RELATIVE PLACE, ETC., 
OF CONSTABLES, MARSHALS, ETC., GENERALLY. 

1. Various kinds of officers defined , etc. To aid in clearly un¬ 
derstanding the relative position, powers, duties and respon¬ 
sibilities of constables, marshals, and similar officers, the 
classification of public officers as legislative, judicial, executive 
and ministerial should be borne in mind. 

2. Legislative officers are members of legislative bodies 
which enact laws or ordinances, such as the Congress of the 
U nited States, state legislatures, and city and village councils. 

3. A judicial officer is one invested by law with po\yerto de¬ 
cide controversies between individuals in civil cases, and to 
decide accusations made against persons charged with vio¬ 
lation of law or ordinance in criminal cases. Judges, jus¬ 
tices of the peace and mayors are judicial officers. 1 Jus¬ 
tices of the peace, mayors, and police judges are called mag¬ 
istrates. 

4. A ministerial officer is one whose duty it is to execute the 
lawfully issued commands of other officers. These com¬ 
mands are very generally in writing, or are partly printed 
and partly written, are signed by the judicial officer, and 
are also sealed by him, if he have a seal, 2 and each one is 
called a writ, or process. See more fully, Chapter 5, as to 
writs and process. 

5. Constables, marshals, sheriffs, deputy sheriffs, deputy 
marshals, and policemen, are ministerial officers.s 

6. An executive officer is one whose duty it is to cause 
the laws to be executed, without waiting or needing to be 
commanded to do so by another officer. He does this by 
means of other officers, militia, etc., subject to his orders. 
The president of the United States, the governor of the 
state, are executive officers. When the sheriff, constable or 

1 Many officers act sometimes in one capacity, and sometimes in 
another. For instance, the acts which a justice of the peace is 
required by law to perform in a particular way, and as to which he 
has no discretion about the manner of their doing, are of ministerial 
character. In regard to issuing an order of arrest (for instance* 
every thing to be done is specifically defined by the statute; and when 
doing this, he is acting as a ministerial officer. See 22 O. S. 317, 322. 
Rut as his duties are in the main judicial, lie is classed as a judicial 
officer. For similar reasons constables, marshals, etc., are classed as 
and are chiefly ministerial officers. 

2 A mayor and police judge each have a seal, and must put it on all 
writs, etc., issued by them (§§4550, 45721 : but a justice of the peace 
has no seal. 

3 American law a constable is an officer of a municipal corpora¬ 
tion. usually elected, whose duties are similar to those of a sheriff 
although his powers are less and his jurisdiction smaller. 35 Cvc 14S9 


POWERS, DUTIES, RIGHTS, ETC. 19 

marshal call upon bystanders, or upon the power of the 
county (posse comitatus) to aid in making arrests, quell¬ 
ing riots, etc., they are then acting as executive officers. 1 
See pars. 36, 37, and note 1, page 18. 

7. There are many other kinds less important to mention 
here, such as military officers, having command in the army ; 
naval officers, having command in the navy; revenue of¬ 
ficers, etc. 

As to Constables. 

8. Are ministerial officers, where, etc. All constables are min¬ 
isterial officers in justice’s courts, in their respective town¬ 
ships in civil cases, and in their respective counties in criminal 
cases. 1 

9. When constable of adjoining township may act. The 
law provides, however, that in any case when there shall be 
no constable in any township, the constable of any othei 
adjoining township in the county is authorized to serve any 
process that any constable of said township is now or may be 
authorized to serve by law. 2 

10. Must serve criminal process, where t They are authorized 
and empowered by law to execute all writs and process in 
criminal cases throughout the county in which they may 
reside, and where they were elected and appointed, 3 and to 
arrest, on view or'warrant, and bring to justice all felons 
and disturbers of the peace and violators of the criminal 
laws of this state. 4 

11. Must pursue fugitives into other counties. If any person 
charged with the commissioh of any crime or offense, flees 
from justice, any constable of the county in which such 
crime or offense was committed, is authorized and required 
to pursue after and arrest such fugitive from justice, in any 
other county of this state, and to convey such fugitive be¬ 
fore any justice of the peace of the county where such 
crime or offense was committed. 5 

12. Are preservers of the peace. It is the constable’s duty to 
suppress all riots, affrays, and unlawful assemblies, which 
may come to his knowledge, and, generally, to keep and pre¬ 
serve the peace in his proper county. 6 

13. Must serve civil process, where t Civil process may be ex¬ 
ecuted by them throughout the county, under the restric¬ 
tions and provisions of the law. 7 What these restrictions 
and provisions are will appear in the succeeding chapters on 
summons, subpena, and similar subjects. 

14. What writs he must serve, etc. It is the duty of every 
constable to serve and execute all warrants, writs, precepts, 
executions, and other process directed and delivered to 
him. 8 

1 § 3334. 2 § 3329. 3 § 3345. 

* § 3340, see also § 1737. 5 §§ 3345, 13502. 

« §§ 3340, 3336. 7 § 3334. 8 § 3341. 


20 


CONSTABLES, MARSHALS, ETC. 


15. Further as to his authority , serving urrits, etc. In serving 
all process, either civil or criminal, and in doing his duties gen¬ 
erally, when not otherwise restricted by law, the authority 
of aconstable extends throughout the whole county in -which 
he may be appointed; and in executing and serving process is¬ 
sued by a justice of the peace, he has the same authority 
and powers over goods and chattels, and the persons of 
parties as is granted by law to a sheriff or coroner, under 
like process issued from courts of record. 1 

16 Certain miscellaneous writs they must serve—of examiners 
ol treasury. The law provides for the examination of the 
county treasury at certain times by persons appointed for 
that purpose by the probate judge, and also that they have 
and may exercise all the authority to issue subpena and 
compulsory process, and direct the service thereof by any 
constable or sheriff, compel the attendance of witnesses and 
the production of books and papers before him at any desig¬ 
nated place, to administer oaths, and to punish for disobe¬ 
dience oi subpena, or for refusal to be sworn, or to answer 
as a witness, which is conferred by law upon courts or of¬ 
ficers authorized to take depositions. 2 As to what this au¬ 
thority is, see Chapter 37. 

17. Of coroners. Constables must serve writs for coroners 
in certain cases, as more fully stated in Chapter 40. 

18. Of notaries. And of notaries public, as more fully 
stated in Chapter 37. 

19. Of county surveyor. When the county surveyor is es¬ 
tablishing any corner or corners of lands within his county, 
he may issue a subpena, directed to any constable or other 
fit person, to execute the same, to cause to come before him, 
such witness or witnesses, as well without as within his 
county, as the person demanding such warrant, or other 
person interested requires. 3 

20. Of militia officer. Members of regiments of the Ohio 
National Guard are subject to the payment of certain dues 
and fines, the amount of which are fixed by the coun¬ 
cil of administration of each regiment and battalion, sub¬ 
ject to the approval of the commander-in-chief. And the 
commanding officer of any regiment, battalion, company, 
troop or battery, may arrest any member of his command 
for the violation of any order, regulation or law for the 
government of the Ohio National Guard, and may author¬ 
ize in writing, any constable or police officer of the city, 
village or township where such violation occurs, to so arrest 
any such delinquent member ; and such commanding officer 
may turn over to any constable or police officer any mem¬ 
ber of his command so arrested by him, and such constable 
or police officer must hold such man so arrested and in his 

1 § 3341. 2 §§ 2G99, 2700 (S8 v. 431). a § 2808. 


POWERS, DUTIES, RIGHTS, ETC. 21 

custody until he has been tried by the proper court-martial, 
or has been discharged by proper authority, and for a pe¬ 
riod not exceeding five days. 1 If any person temporarily 
erects any stand, booth, or other structure for the purpose 
of exposing for sale, giving, bartering, or otherwise disposes 
of any spirituous or other intoxicating liquors whatsoever, 
at or within a distance of one mile from any parade or en¬ 
campment of said National Guard, he may be put immedi¬ 
ately under guard, and kept at the discretion of the com¬ 
manding officer, who may turn over such person to any 
police officer or constable of the city, township or town 
wherein such duty parade or drill, encampment or meeting 
is held, for examination or trial before any court of justice 
having jurisdiction of the place. 2 

21. Of Judges of Common Pleas, Superior and Circuit Court , 
Notices ol motions in said courts may be served by a 
sheriff, coroner, or constable, or by a disinterested person. 
Such service must be made as required for the service of a 
summons; and when served by an officer, he will be enti¬ 
tled to like fees. The service must be on the part} 7 , or his 
attorney of record, if either is a resident of the county in 
which the motion is made; and if there is more than one 
party adverse to such motion, service must be made upon 
each party, or his attorney. 2 

22. Other duties of, in upper courts. Generally, constables 
may be required to attend the Courts of Common Pleas and 
Probate Courts of their county, and the Superior Court of 
Cincinnati, to preserve order therein, and to serve and re¬ 
turn all orders, writs and process directed to them by such 
courts. 4 However, they are seldom called on to perform such 
duties there, these being almost always attended to by sher¬ 
iffs and their deputies, or by the coroner of the county. 

23. See also paragraph 1 of Chapter 10, which applies to 
all officers authorized to issue subpenas. 

24. Escaped convicts to be arrested and returned. It Is the 
duty of all sheriffs, coroners, and constables to arrest any 
convict who escapes .from the penitentiary, and forthwith 
convey him to the penitentiary, and deliver him to the 
warden thereof. They must be allowed eight cents per 
mile going to and returning from the penitentiary, and 
such additional compensation as the warden may deem rea¬ 
sonable for the necessary expense incurred. 5 

25. Arrest of paroled convicts. The law provides that cer¬ 
tain convicts in the penitentiary may, during their compli¬ 
ance with certain conditions, rules and regulations as to 
their conduct, be allowed to go upon parole outside of the 
buildings and inclosures, but to remain, while on parole, in 
the legal custody and under the control of the board of man- 

1 §5 5250, 5251. 2 § 5275. 3 §§ 11373, 11374. 

* If 15(55, 1596. 8 § 13606. 


22 


CONSTABLES, MARSHALS. ETC. 


agers of the penitentiary, and subject at any time to be 
taken back within the inclosure of said institution ; and full 
power to enforce such rules and regulations, and to retake 
and re-imprison any convict so upon parole, is given said 
board. 1 

26. The written order of said board, certified by its sec¬ 
retary, is a sufficient warrant for all officers named therein, 
to authorize such officer to return to actual custody any 
conditionally released or paroled prisoner; and it is the 
duty of all officers, including all chiefs of police and mar¬ 
shals of cities and villages, and the sheriffs of counties, and 
of all police officers and constables, to execute any such 
order in like manner as ordinary criminal process. 1 

27. Fees therefor. For the performance of such duty, the 
officer must be paid by said managers such reasonable com¬ 
pensation as is provided by law for similar services in like 
cases. 2 See Chapter 39, as to fees. 

28. Arrest and return of fugitives from Industrial School. Any 
fugitive from the boys’ industrial school may, on the order 
of the superintendent, or other officer of the institution, be 
arrested and returned to the school, or to any officer or 
agent thereof, by any sheriff, constable or police officer. 3 

29. Arrest of fugitives from refuge or apprenticeship. A fugi¬ 
tive from a house of refuge and correction, or a fugitive 
from apprenticeship under indentures executed by the 
proper officers thereof, may be arrested and returned to 
such institution by a sheriff or constable of any county in 
this state, or police officers of the corporation, or office! of 
such institution, on the written order of two directors of 
such institution, directed to such officer, and may be deliv¬ 
ered to the custody of such officer of the house of refuge 
and correction as the directors may name. 4 

30. Must note on each writ the time of receiving it. On the re¬ 
ceipt of any writ whatever, except supenas, the constable 
must note, on the writ, the time he received it. 3 See para¬ 
graphs 6 and 7, of Chapter 5. 

31. Must note items of fees. See paragraph 36 of Chapter 5. 

32. Must make return of process. It is the duty of every 
constable to make due return of all process directed and de¬ 
livered to him, at the proper office and on the proper re¬ 
turn day of such process. 6 See paragraphs 4-7, Chapter 5. 

33. Must state what, in his return on the writ. He must, in 
his return on the writ, state how he executed it. 5 

34. Must do what, before returning “Not found.” No 
constable is allowed to make a return on any process of 
“Not found,” as to any defendant, unless he shall have 
been once at least to the usual place of residence of the de¬ 
fendant, if such defendant have any residence in the county." 

1 §§ [2170T t80 v. 361) [2171] is valid, 6 0. C. C. 215. 

2 § 13606. 3 §1831. 4 §4112. 

« §§ 3338. 10233. e § 3337. » § 3339. 


POWERS, DUTIES, RIGHTS, ETC. 


23 


35. Other duties. It is his duty to do and perform in all 
respects whatever, all things pertaining to the office of con¬ 
stable. 1 

36. May call wliat aid. In discharging their duties, con¬ 
stables may call to their aid the power of the county, or such 
assistance as may be necessary. 2 

37. Refusing to aid officers in arresting , securing, etc., a crim¬ 
inal, and in preserving the peace. Whoever, when called upon 
by the sheriff, coroner, constable, or other ministerial offi¬ 
cer, to assist him in apprehending any pefson charged with 
or convicted of any criminal offense, or in securing such 
person when apprehended, or in conveying hmi to jail or 
prison, neglects or refuses to render such assistance, is lia¬ 
ble to be fined not more than fifty dollars. 3 

38. To whom to pay over moneys. Constables must pay over 
to the party entitled thereto all money received by them in 
their official capacity, if demand be made by such party, 
his agent, or attorney, at any time before he returns the 
writ upon which he has received it. 1 

39. If not paid over by that time, he must pay such 
money to the justice when he returns the writ. 4 

40. Justices to receive moneys from constables. Justices of the 
peace must receive from constables all moneys collected by 
them, except when it shall have been paid over by the con¬ 
stable to the party entitled thereto before the return of his 
execution. 5 

41. Penalties against. Constables are liable to ten per 
cent, penalty upon the amount of damages for which judg¬ 
ment may be entered against them, for failing to make re¬ 
turn, making a false return, or failing to pay over money 
collected by them, or received in their official capacity ; and 

1 §§ 3340, 3345. 2 § 3336. See paragraph 7 above. 

3 § 12857. The county commissioners must allow a reasonable com¬ 
pensation to any person who is summoned to aid any sheriff or con¬ 
stable, or other officer, as the case may be, in the execution of any 

writ or process in favor of the state, but such compensation can not 
exceed one dollar per day, and can be allowed only upon certificate of 
such officer. § 2485. 

* § 3343. 

5 § 10482. All moneys so received by such justices, or otherwise col¬ 
lected, with or without process, and received in their official capacity, 
for the use of any person or persons, must be by them paid over to 
such person or persons, his or their agent, on demand; and if any 
justice of the peace refuses or neglects to pay over all moneys by him 
so received, when it is demanded of him- at his office or place of resi¬ 
dence, to the person or persons entitled thereto, or to his or their agent, 
every such justice shall, on motion in the probate court, and five 
days notice thereof in writing, be amerced in the amount of such 
moneys with ten per cent, thereon, to and for the use of the party 
entitled thereto, which amercement must be entered on the record of 
said court, and will have the same effect as a judgment, and there 
shall be no appeal therefrom. § 10482. 


24 


CONSTABLES, MARSHALS, ETC. 


such judgment must include, in addition to the damages 
and costs, the penalty provided in this paragraph. 1 

42. What will excuse non-payment. If such money be gar¬ 
nisheed in the constable’s hands, he will be excused from 
paying it, to the extent more fully set forth in paragraph 
32, of Chapter 19. 

43. Sale of constable’s or marshal’s property for such money. 
Surety may be released , if money not paid. If the property of 
a constable be levied on, for or on account of any money by 
him collected or received in his official capacity, the prop¬ 
erty so levied on must be sold without valuation. 2 If such 
money be not paid as required, the marshal’s or constable’s 
sureties may apply to be discharged, as more fully set forth 
in Chapter 38. 

44. Duties of , to suppress sale of liquors at fairs. A constable 
of the proper township, or the constables specially ap¬ 
pointed, and certain other officers, must, upon view or in¬ 
formation, without warrant, apprehend any person selling 
intoxicating liquors in violation of law at or within tw T o 
miles of the place where an agricultural fair is being held, 
and seize the booth, tent, wagon, carriage, stand, vessel, or 
boat at or from which such liquors are being sold, and con¬ 
vey the same to a place of safe keeping, and take the per¬ 
son so offending before some officer having competent juris¬ 
diction, together with an inventory of the things so seized. 3 

46. May order certain nuisances abated. The constable may 
Drder, in writing, any one who puts the carcass of any dead 
animal, or the offal from any slaughter-house, or butcher’s 
establishment, packing-house, or fish-house, or any spoiled 
meat, or spoiled fish, or any putrid substance, or the con¬ 
tents of any privy vaults, upon or into any lake, river, bay, 
creek, pond, canal, road, street, alley, lot, field, meadow, 
public ground, market space or common, to remove or abate 
the nuisance occasioned thereby; and whoever, being the 
owner or occupant of any such place, knowingly permits any 
such thing to remain therein, to the annoyance of any of the 
citizens of this state, neglects or refuses to remove or abate 
the nuisance occasioned thereby, within twenty-four hours 
after knowledge of the existence of such nuisance upon any 

1 § 3344. 2 § 11680. 

3 § 9914. These other officers are judges of any court, sheriff, coro¬ 
ner, and justices of the peace. The officer before whom such offender 
is brought must proceed forthwith to inquire into the truth of the 
accusation, and proceed as provided by law. § 9914. 

The articles so seized will be bound for the payment of all fines 
and costs assessed against the accused in the proceeding, including 
the necessary expenses of seizing and detaining the same, and must 
remain in the possession of the officer who makes the seizure until the 
determination of the prosecution, and may be sold on process issued 
therein against the accused. § 9915. 


POWERS, DUTIES, RIGHTS, ETC 


25 


of the above-described premises, owned or occupied by him, 
or after such notice thereof in writing, is liable to be fined 
not more than fifty dollars nor less "than ten dollars, and 
pay the cost of prosecution, and in default of the payment 
of said line and costs, be imprisoned not more than thirty 
days. 2 3 There are certain exemptions from this stated in 
the note below. 

47. Entitled to what laws. Many officers, constables in¬ 
cluded, are entitled to receive one copy of the laws passed 
at each session of the general assembly, fo~ his use while 
in office.^ These laws are bound into volumes and are sent 
to the county auditor for distribution to the officers entitled 
thereto.! 

48. Must deliver same to his successor. These officers 
must each deliver all copies of such laws so obtained to 
their successors in office.! 

49. Penalty for refusing. If any such person refuses on 
demand being made to deliver such books to his successor 
in office, he will be liable to forfeit and pay any sum not 
less than five nor more than fifteen dollars, to be recovered 
in an action brought by his successor in office, in the name 
of the state {for the use of the county where such action is 
brought), before any justice of the peace of such county.^ 

50. Same, additional. The law further provides that "all 
township officers must deliver over to their successors in 
office all books, records, documents, laws, obligations, pa¬ 
pers, blanks, and all other articles and property belonging 
to their respective offices or deposited with them in their 
official capacity; and that any person who has been a 
township officer who refuses to deliver over the same, or 
any part thereof, shall forfeit any sum not more than fifty 
nor less than five dollars, to be recovered by action for the 
use of the township.6 The constable is a township officer. 

51. As to constable stirring up law-suits , etc. A constable 
who encourages, excites, or stirs up any suit, quarrel or con¬ 
troversy between two or more persons, with intent to injure 

2 §§ 12649, 12650, 12651. The foregoing provisions are not to be 
construed to prohibit the depositing of the contents of privy vaults and 
catch basins into trenches or pits not less than three (3) feed deep, 
excavated in any lot, field or meadow, the owner thereof consenting, 
outside the limits of any municipal corporation, and not less than 
thirty rods distant from any dwelling, well or spxnng of water, lake, 
bay or pond, canal, run, creek, brook or stream of water, public road 
or highway; provided, said contents deposited in said trenches or 
pits are immediately thereafter covered with dry earth to the depth of 
at least twelve inches; nor shall said provisions prohibit the depositing 
of said contents into furrows situate and distinct, as specified for said 
trenches or pits; provided, the same are immediately thereafter wholly 
covered with dry earth, by plowing or otherwise, and provided also, 
that the owner or occupant of the land in which said furrows are 
plowed consents, and is a party thereto; the board of health of any 
municipal corpoi*ation may allow said contents to be deposited within 
the corporate limits into trenches or pits or furrows, situate, distant 
and to be so covered. §§ 12650, 12651. 

3 § 2279. * §§ 2282, 72. 

5 § 2279. ® § 3266 (S8 v, 42), 


CONSTABLES, MARSHALLS, ETC. 


any. such person, is liable to be fined not more than five 
hundred dollars.3 

Of Marshals and their Deputies. 

52. The marshal is the principal ministerial officer of the 
municipal corporation for which he was elected. 4 

53. Deputy marshals. The council of the corporation may 
appoint one or more deputy marshals, who may execute all 
writs, process, and orders directed to the marshal. The 
council may remove such deputies for cause, and may re¬ 
quire suitable bond from each one so appointed. 5 

54. Marshal's duties. The marshal must execute and re¬ 
turn all writs and process directed to him by the mayor, and 
must, by himself or deputy, attend on the sittings of the 
mayor’s court, to execute the orders and process thereof, 
and to preserve order therein. 6 

55. His jurisdiction and that of his deputies in the execution 
of all such writ and process, and in criminal cases, and in 
all cases of a violation of the ordinances of the corporation, 
is co-extensive with the county, and in civil cases is co-ex- 
tensive with the jurisdiction of the mayor in the same. 6 

56. They have also, in all matters in any way connected 
with the trial of civil cases and of state criminal cases by 
the mayor, the same powers, duties, and responsibilities as 
constables. 1 In other words, the entire contents of this 
book, except paragraphs 1 to 21 and 36 to 47 of Chapter 1, 
paragraphs 8, 9, 16 to 24, 44 to 50, 64 to 71 of Chapter 3, all 
of Chapter 36, and paragraphs 19 to 25 of Chapter 40, prob¬ 
ably, apply as fully to marshals and their deputies as to 
constables. 

57. He must preserve the peace. The marshal must suppress 
all riots, disturbances, and breaches of the peace, and to 
that end may call upon the citizens to aid him.' 2 See para¬ 
graphs 6, 36 and 37 of this chapter, and Chapter 29. 

58. Arrests by. He must arrest all disorderly persons in 
the corporation, and pursue and arrest any person fleeing 
from justice in any part of the state. He must arrest any 
person in the act of committing any offense against the laws 
of the state, or the ordinances of the corporation, and 
forthwith bring such person before the mayor or other com¬ 
petent authority, for examination or trial; and he must re¬ 
ceive and execute any proper authority for the arrest and 
detention of criminals fleeing or escaping from other places 

3 § 12847. 4 § 4385. ® § 4385. 

e § 4386. A village marshal has authority to serve all writs issued 
by the mayor, for which purpose his jurisdiction extends throughout 
the county. He can not as marshal execute a state warrant issued by 
a justice of the peace, either inside or outside of the corporation, nor 
can he arrest on view outside of the corporation.—Opinion of Law¬ 
rence, Att’y-Gen’l, (1884). Vol. G, 114. 

An officer of the i>eaee appointed by authority of a city or borough, 
who holds himself in readiness to answer such calls as fall within the 
general duties of a constable or sheriff. 26 Cyc. 926. 

1 See § 10491, which is as follows: “The provisions of this title shall, 
so far as applicable, govern the proceedings of mayors in the exercise 
of the jurisdiction concurrent with justices of the peace given to them, 
and also to marshals as ministerial officers of mayor’s courts in the 
same jurisdiction.” 

2 § 4386. See 50 O. S. 179. 


POWERS, DUTIES, RIGHTS, ETC. 


27 


detention of criminals fleeing or escaping from other places 
or states.* 

59. Disposition of fines , etc. All fees, costs, fines, and 
penalties collected by him must immediately be paid over 
to the mayor. 2 


Of Special, Constables. 

62. Poioers, etc., of constable appointed by justice. The 
person appointed special constable by the justice, as pro¬ 
vided in paragraph 36 of Chapter 1, after taking the oath 
required by paragraph 37 of Chapter 1, will have the same 
authority, be subject to the same penalties, and entitled to 
the same fees, as other constables. 3 

63. Powers of such constable. Constables appointed as 
provided in paragraph 38 of Chapter 1 will have all the 
power of constables to suppress riots, disturbances, and 
breaches of the peace; they may, upon view, arrest any 
person guilty of a violation of any of the laws of the state, 
and may pursue and arrest any person fleeing from justice 
in any part of the state; and they may apprehend any 
person in the act of committing an offense, and, upon rea¬ 
sonable information, supported by affidavit, procure process 
for the arrest of any person charged with a breach of the 
peace, and forthwith bring such person before the compe¬ 
tent authority, and enforce all the laws for the preservation 
of good order. 4 


Of Policemen, Watchmen, etc., in Cities 
and Villages. 

64. In the larger cities. The remarks found in paragraph 
43 of Chapter 1, as to the appointment, etc., of such officers 

i § 4386. See 50 O. S. 179. 2 § 4388. 

3 § 3332. Such justice will stand as surety, and he and his sureties 
will be liable in that character for any neglect of duty or any illegal 
proceedings on that part of any constable so appointed. § 3333. Under 
a bond given by a justice of the peace, conditioned as required by 
G. C. § 1721. the sureties are liable “for any neglect of duty, or any 
illegal proceedings, on the part of’’ a constable appointed by said jus¬ 
tice under § 3331, by virtue of § 3333. Dummick v. Howitt, 40 O. S. 
646. 

4 § 9913. 


28 


CONSTABLES, MARSHALS, ETC. 


in our large cities, apply also to some of their unusual 
duties. 

65. The laws governing the powers, duties, etc., of these 
officers in the smaller cities and villages are few, and have 
not been changed for many years. 

66. Provision is made for the appointment by justices of 
the peace of special policemen for Chautauqua Assemblies, 
on the application of the board of trustees or general 
manager therof. 1 

67. To enforce the provisions relating to compulsory 
education truant officers are required to be appointed. 
In special village and township districts the board of 
education has power to appoint a constable or other per¬ 
son as truant officer and to lix the compensation therefor. 2 

68. Probation officers may be appointed who are required 
to make written reports at certain periods, not less than 
once each month concerning the conduct of probationers.3 

69. Powers of the Policeman. A police force is an or¬ 
ganization ; it has a controlling mind by which its members 
may be made to act in concert; while the constable acts 
upon on his own responsibility and his own conception 
of his legal duties. 4 A police officer is intimately con¬ 
nected with the enforcement of all laws and ordinances 
concerning crimes, and is an important factor in preserving 
the peace and good order of the community. 5 

70. Duties required of him and difficulties he encounters. 
In a recent British work, 5 the author, Dr. Devon, dwells at 
considerable length upon the difficulties that beset the 
officer. Many of these are equally applicable to the United 
States. The pay there, as here, is comparatively small. 
He has onerous duties imposed upon him. Sometimes 
he may err in his judgment as to the condition of a 
prisoner, and may fail to attract the attention of a 
medical officer to him. On the other hand, if he should 
call a surgeon too frequently to see persons who it turns 
out, did not need his services, he may be severely criticized 

1 §§ 5888. 5893. * §§ 7769. 7770, 7771. s § 13712. 

4 White v. Manistee County, 105 Mich. 608. 

5 Clev. v. San Fran. Police Com., 3 Cal. App. 174. 

« Devon, The Criminal and the Community, pp. 191-197 (1912). 


POWERS, DUTIES, RIGHTS, ETC. 


29 


on this account and perhaps subjected to severe reprimand, 
suspension, or, may be dismissed. Many calls are made 
upon him for the display of instantaneous judgment, often 
greater than upon men much better equipped by superior 
education and special training. When some extraordinary 
case attracts attention, blame is lavishly showered upon the 
officer; it is generally undeserved. He is held blamable 
for things for which he is unfitted. To the majority of 
the people he is the living representative of the law. It 
is his duty to protect the citizens from evil doers, and 
to arrest offenders. He is the subject of a good deal of 
“chaff,” but his position is generally respected, and al¬ 
though men get into the force who, by temper and exper¬ 
ience, are quite unsuited for their work, the great majority 
discharge the duties laid upon them in a manner that is 
surprisingly satisfactory, when the severe demands made 
upon them are taken into account. They are supposed 
to have a knowledge of the law, and for practical purposes 
they must know something of medicine, in order that they 
may give first aid to the injured; they are expected to 
be able to answer questions of an exceedingly miscellaneous 
nature when asked by the passing stranger; and they 
require to be always cool, clear-headed, ready for any 
emergency and to have a temper that nothing can ruffle. 
Every district has its own peculiarities, not observable to 
those who live there, because of custom, but noticed by 
strangers. It is therefore a good thing for the officers 
to become acquainted with the customs and manners of 
the people among whom they live. A policeman will 
discharge his duties with more comfort to himself, more 
credit to the force, and a greater benefit to the community 
if he knows those in the district in which his duties lie. 
Unless he is in touch with the law-abiding elements therein, 
unless he knows them, gets their confidence and support, 
in many cases he will not be in a position to distinguish 
between conduct that is harmless and conduct that is 
criminal. For instance, it is well known that professional 
thieves depend largely on their coolness and daring for 
their success. If “thieves” were written all over them, 



30 


CONSTABLES, MARSHALS, ETC. 


they would starve, and they only earn their living because, 
to those personally unacquainted with them, they are not 
distinguishable from honest men. The policeman knows 
them, and if he sees a person coming out of business 
premises long before business hours, he quite naturally 
questions that person by look or by word. If he does 
not know whether the person has a right to be there, 
the policeman may make a fool of himself, either by 
arresting the man, who has had legitimate business on the 
premises, or by letting a thief get away. He is on the 
horns of a dilemma in which he ought not to be placed. 


LAW-SUITS OK ACTIONS AT LAW, ETC. 


31 


CHAPTER 4. 

LAW-SUITS OR ACTIONS AT LAW, GENERALLY. 
THE VARIOUS KINDS OF, THEIR INCIDENTS 
AND PROGRESS. 

1. “ Law-suits ” or actions in court explained, etc. It may aid 
the constable or other ministerial officer better to under¬ 
stand his duties, etc., in relation to court proceedings, if 
the nature and classification of those he must act in are 
briefly explained, and if the different things that occur, 
or may occur therein, are briefly stated in their probable 
order. To this end, it may be well to begin by giving the 

2. Meaning of “ the law,” etc.—Civil and criminal, etc., laws. 
The terms “ law ” and “ laws ” have widely different mean¬ 
ings even in ordinary conversation; for we speak, for in¬ 
stance, of. the laws of health, the moral law, the laws of na¬ 
ture, the law of gravitation, the law of the land, etc.; but 
as used in this book, these terms generally mean the en¬ 
actments of the legislature, also called statutes, or the stat¬ 
ute law of the state. 

3. Certain portions of the statutes relate to the definition, 
prevention and punishment of crimes and offenses, these 
being called penal or criminal laws; other portions relate to 
the making and enforcement of contracts, the conveyance 
and inheritance of property, and similar subjects, and are 
sometimes called civil laws} Other portions relate to the 
duties, etc., of the various departments of the state govern¬ 
ment, such as the governor, the legislature, counties, public 
institutions, etc., and are classed as political. Other portions 
relate to the procedure in the various courts, from the courts 
presided over by magistrates, to the supreme court, these 
statutes being classed as remedial. 

4. Suit, action, civil action, criminal action. The proceedings 
in, or trial of a particular case, in a court are called a suit or 
action. Both the nature of things and the law divide these 
into two leading classes: those relating to crimes or offenses 
being called criminal actions, and those relating to con¬ 
tracts, private wrongs, or other civil law matters being 
called civil actions. 

5. Parties to a civil action. The person who sues or brings 
the action is called the plaintiff. In this book be is always 
designated as E. F. The person who is sued or against whom 
the action is brought is called the defendant. In this book 

1 See “Tables of Titles” and chapters contained in the General Code 
of Ohio,” in first part of vol. 1 thereof. 


32 


CONSTABLES, MARSHALS, ETC. 


he is designated as G. H. There may be more* than one 
plaintiff as well as more than one defendant. Others than 
they may be concerned in some way as officers, witnesses, 
jurors, garnishees, etc., but they are not parties to the suit. 

6. How others designated herein. For convenience in this 
book, the constable or other ministerial officer is designated 
as A. B.; the justice or mayor as C. D.; any interested third 
person, such as garnishee, etc., as T. P.; witnesses generally, 
as I. J., K. L., etc. Others are variously designated. 

7. Various kinds of civil actions. A civil action may have 
for its object: (1) The recovery of money only, such as a 
suit on a promissory note, account, or for money due in any 
other way. Such a suit is sometimes called an ordinary 
civil action; or, (-2) It may have for its object the recovery 
of a specific article or articles of personal property from 
another person who will not peaceably surrender possession 
thereof to the person who is, or who claims to be, legally en¬ 
titled thereto, such a suit being called an action of replevin, 
or suit of replevin ; or, (3) It may have for its object the re¬ 
covery of the possession of certain real estate, such as a 
dwelling, store, etc., from an occupant or occupants who will 
not peaceably surrender the same to the person who is, or 
who claims to be, legally entitled thereto. Such a suit is 
called an action of forcible entry and detainer, if the plaintiff 
claims that the defendant has both wrongfully entered and 
unlawfully detains the property; or of forcible detainer, if 
the plaintiff claims that the defendant rightfully entered 
but wrongfully detains the property. 

8. How an ordinary civil action proceeds. When some per¬ 
son, say E. F., has a cause of action, say a promissory note 
or account against another which he wishes to sue upon, ho, 
E. F., or his agent or attorney, gives to the magistrate a 
paper stating the nature of the claim, and in effect asking 
him to bring suit therein. This is called a bill of par¬ 
ticulars ; but with it, the constable lias nothing whatever to 
do. 

9. A summons is then issued by the judicial officer to the 
ministerial officer, unless the defendant voluntarily appears 
without being summoned. As to this writ, see Chapter 6. 
See also carefully, Chapter 5 as to all such writs. 

10. A subpena for witnesses whose testimony is wanted will 
probably next be issued. It may happen, however, that 
no witnesses will be needed, or that they may be expected 
to appear without being subpenaed. It may also happen 
that several subpenas may issue in the same case. As to 
this writ, see Chapter 7. 

11. A summons to jurymen may, before or after the issuance 
of subpena, be given to the ministerial officer. As to this 
writ, see Chapter 8. 

12. Trial of the case. It will generally, though not al¬ 
ways, be the case that the ministerial officer will have no 


LAW-SUITS OR ACTIONS AT LAW, ETC. 


33 


further duties to perform or writs to serve till the trial of 
the case is begun. During trial he must be present to pre¬ 
serve order, etc., (see paragraph 1, of Chapter 9.) During 
the trial, or just before it begins, he may aiso have to serve 

13. An attachment for one or more witnesses or jurymen who, 
in contempt of court or otherwise, have refused or neglected 
to appear, as commanded by subpena or summons. As to 
this writ, see Chapter 10. 

14. Judgment and executicm. If the plaintiff recovers judg¬ 
ment at the trial, and it be not paid or appealed from, execu¬ 
tion will probably be issued soon after to that officer 
(constable), commanding him to levy on and sell enough 
of defendant’s property to pay the judgment and costs. 
As to this, see Chapters 11 to 18. 

15. Attachment of defendant's property before judgment. How¬ 
ever, it will not infrequently be the case that the defendant 
is not a resident of the county in which the suit is brought, 
or that he has committed some fraudulent act concerning 
his debt, either of which will justify the plaintiff in having 
the defendant’s property attached or seized before judgment, 
to make sure of having the property on hand to sell after 
judgment to satisfy the plaintiff’s ciaim, and costs. As to 
this part of such a trial, see Chapter 19. 

16. Arrest before judgment. And it will occasionally be the 
case, though not often, that the defendant has committed 
some fraud which will have rendered him liable to be ar¬ 
rested and imprisoned before judgment in this same suit, 
in reference to the claim sued on. In such-case, an order of 
arrest before judgment will be issued to the officer, as set forth 
in Chapter 25. 

17. Arrest after judgment. Or there may be grounds for 
an order of arrest after judgment , similar to those indicated in 
paragraph 23 above. As to this part of such a trial, see 
Chapter 26. 

18. The action of replevin is begun by the plaintiff filing 
an affidavit, after which the magistrate issues a summons 
and writ of replevin combined, as more fully set forth in 
Chapter 20. 

19. In such an action, after the summons is issued, there 
may be subpenas, summons to jury, and attachment for wit¬ 
ness and juror, as in an ordinary civil action, and to be 
served, etc., in the same way exactly as in such an action, 
and as more fully set forth in the respective chapters relat¬ 
ing to these writs, which see, as occasion arises. 

20. The action of forcible entry and detainer is begun by the 
plaintiff filing with the magistrate a statement of his case, 
called a “ Landlord’s complaint,” which takes the place of 
the bill of particulars mentioned in paragraph 8 above. But 
before such action is begun, a written notice to leave the 


84 CONSTABLES, MARSHALS, ETC. 

premises must usually be given to the occupier of the prem¬ 
ises by the landlord. Sometimes the latter asks the consta¬ 
ble to serve this notice on the tenant; but when the con¬ 
stable does this, he acts as the agent of the landlord, and 
not as an officer. See more fully Chapter 21. 

21. In this suit, also, there may be summons, subpenas, 
summons to jury and attachment of witness or juror, etc., 
which must be served, etc,, as set forth in the chapters re¬ 
lating to these writs respectively, which see. 

22. Criminal actions are generally begun by some one (and 
this must in many cases be the constable or marshal), mak¬ 
ing an affidavit, accusing some person or persons of some 
violation of the law, as more fully appears from Chapter 28. 

23. The next step will be .t ee issuing of a warrant to the 
constable or marshal. As to this, see Chapter 28. 

24. In these cases also, there may be subpenas, summons 
fora jury, attachment of witness or juror, and execution 
for costs. If so, they^must be served, etc., as set forth in 
the various chapters relating to these writs, which see for 
.fuller particulars. 

25. During the progress of the case, and after trial, there 
may be occasion to commit the accused to the jail of the 
corporation, or of the county, or to the work-house. The 
writ directing and authorizing the ministerial officer so to 
commit him is called a commitment or mittimus. As to this, 
see Chapter 28. 


WRITS, COPIES THEREOF, ETC. 


35 


CHAPTER 5. 

WRITS, COPIES THEREOF, AND THEIR SERVICE, 
GENERALLY—TO WHAT EXTENT OFFICER 
PROTECTED BY. 

1. W'rii defined. A writ is a command in writing, issued 
by a judge, a justice of the peace, mayor, or other judicial 
officer, to a constable, marshal, or other ministerial officer, 
ordering the officer receiving it to do the thing therein di¬ 
rected to be done. In -some cases, the command is to others 
than the officer, as in the case of subpena to witnesses in 
civil cases; but even then the writ is issued to the minis¬ 
terial officer to serve on the persons4herein named. In all 
cases, the writ is returnable to the officer issuing it. Among 
writs are included summons, subpenas, warrants, writs of 
replevin, of restitution, of eaaifution, order of attachment, 
etc. 

2. Original writ. The writ so issued by the judicial officer 
is often called the original writ, to distinguish it from the 
certified copies thereof which the ministerial officer must 
make and serve, as mentioned below. This is always its 
meaning in this book. It sometimes means the first writ 
issued in a case. 

3. Process is the means whereby a court enforces obedi¬ 
ence to its orders. As the word is used in the statutes and 
in this book, it means much the same as writ. See for in¬ 
stance, paragraphs 12, 13 and 15, of Chapter 3. 

4. Ministerial officers’ duties as to writs generally —“ Return ” 
explained. The officer receiving a writ should first note on it 
the time of receiving it, as further explained in paragraph 
6, below; and then he must proceed to do, or try to do, 
what it commands him to do, or he must notify other per¬ 
sons, such as witnesses, etc., of what it commands them to 
do. He must serve the writ on the person required, either 
by arresting that person, as in case that writ be a warrant, 
or by reading it or stating the substance of its contents or 
by giving a certified copy thereof to the proper person, 
as in case of a summons, or by leaving a certified copy 
of the writ at the usual place of residence of that person, if 
the writ be a summons or subpena and the person can not 
be found, as is more fully explained elsewhere. After hav¬ 
ing properly served the writ, he must make on its back, his 
“return” or report, of what he has done in accordance 
with its commands; and then, at the proper time, he must 


36 


CONSTABLES, MARSHALS, ETC. 


give this writ, with his “return” or statement thereon duly 
signed, back to the officer who issued it to him. He must 
never part with this original writ till he so returns it to the 
issuing officer. 

5. In other words, the ministerial officer carefully pre¬ 
serves the writ given to him by the judicial officer, and after 
obeying, or trying to obey, its commands, he writes on the 
back of this original writ his report of what he has done in 
compliance with its commands, which report is called his 
“ return ”; and he then delivers it, so indorsed or written 
on (“returned,” as the law calls it) to the judicial officer who 
issued it to him. See paragraph 32, of Chapter 3. 

6. Noting on the writ the time of receiving it. The first thing 
the officer should do after receiving any writ (except a sub- 
pena) is to make a note or memorandum on it of the time he 
received it, as follows: “Received this writ April 2, 18— 1 

7. Such note is no part of the return which the officer must 
make on the writ, though it is very often put into the return 
as a part of it. That is, the officer often begins his return by 
saying something like the following: “ Received this writ 
April 2, 19—, and on April 3, 19—, I served the same on 
the within named G. II.,” etc. He should have noted such 
time at once, and then in due time, should have begun such 
a return as follows: “On April 3, 19—, I served the within 
writ on G. H.,” etc. Some standard works include this 
note of rime of receiving the writ in the forms of returns 
they contain, though no reason or authority for so doing is 
given. 2 

8. When writ is served by copy. If the ministerial officer 
must serve a writ seemingly by giving it to a person or offi¬ 
cer, such as a subpena to a witness, a summons to a de¬ 
fendant, or a commitment to a jailer or superintendent of a 
workhouse, he does not and must not give the original writ 
to such person or officer, but he makes a copy of the original 
writ, and certifies on the copy that it is a true copy of the 
original writ, and makes his return, or official report, on the 
original writ, and then gives this certified copy to such per¬ 
son or officer, and gives the original back to the judicial 
officer, as stated above. 

9. For instance, when it becomes the duty of the consta¬ 

ble to take any person to the jail of the county, he must 
deliver to the sheriff or jailer a certified copy of the execution, 
commitment or other process by authority of which he holds 
such person in custody; and such constable must return the 
original writ to the justice who issued this writ. 3 This is 
generally also true when prisoners are to be taken to work- 
houses, and similar places of confinement. But see para¬ 
graph 64 of Chapter 28. 1 

1 §§ 10233, 3338. 2 See par. 3 of Chap. 17. 

3 See pars. 52-58 of Chap. 28. (§ 3342.) 


WRITS, COPIES THEREOF, ETC. 


37 


10. The manner of serving'writs and making return thereof 
is pointed out in detail in subsequent chapters. For instance, 
the manner of serving and making return of summons is 
shown in Chapter 6‘; of subpenas, in Chapter 7; of attach¬ 
ment, in Chapter 19; of replevin, in Chapter 20; of war¬ 
rants, in Chapter 28; and similarly, as to other writs, under 
the several chapters relating thereto. 

11. “ Certified copy ” defined , etc. A certified copy of a writ 
or other instrument is a copy thereof on the back of which 
or elsewhere thereon is written, or printed, and signed, a 
certificate such as is given in paragraph 13 below. 

12. Form of certificate. The officer or person who serves 
any writ by copy, as explained in paragraphs 5 and 0 above, 
should indorse on such copy a certificate, in substance as 
follows: 

13. “I certify that the within is a true copy of the origi¬ 
nal writ” ; or, “1 certify the within to be a true copy of the 
original writ”, or, “a true copy”; below which words the 
officer holding the writ writes his name and office, as “ Rich¬ 
ard Roe, constable”; or, “John Doe, marshal”; or, “John 
Doe, marshal, by Richard Roe, deputy.” 

14. Who should make such copies. It is the duty of the min¬ 
isterial officer to make all such copies himself; though the 
officer issuing the original writ sometimes makes these 
copies for him. But making these copies is no part of the 
judicial officer’s business, and when he does so, he merely 
acts as the ministerial officer’s clerk, because the ministe¬ 
rial officer is too negligent or too incompetent to do this 
himself. 

15. In some cases, only one person need be named in the 
copy, even though several persons are named in the origi¬ 
nal writ, as is explained in paragraph 24, of Chapter 7. 

16. Courts now construe liberally officers’ returns in favor 
of their sufficiency, 1 but they will not accept returns made 
in a loose or guessing way, or on the information of others, 
such as, “so far as it appears to me,” or, “ as I am informed.” 
Precision is one of the first requisites of a good return. 1 

17. Amending the return. The return, if wrongly made, 
may generally be amended so that it shall be in accordance 
with the facts, but an officer has no absolute right to 
amend his return. It is in the discretion of the court to 
allow or refuse it. 3 The officer is liable to an action for a 
false return, wb ; ch action may be brought by any one 
affected by the return, though he may not have been a 
party to the suit in which it was made. 4 

18. When return u not found ” allowed. A return of “ not 
found ” can not be made by the constable unless he has 

17 Conn. 350; 8 Id. 134. s Lilt. S. C. 424. 

a 4 O. 74; 4 Dana, 264. « 9 Mass. R. 393. 


38 


CONSTABLES, MARSHALS, ETC. 


been at least once at the defendant’s usual place of resi¬ 
dence, if he has any within reach of the process. 1 

19. When write must be executed. All writs in civil cases 
must be executed on or before their return day; and if it 
chances that its return day falls on Sunday, it must be exe¬ 
cuted the preceding Saturday, if the case be one on which 
service on Sunday would be illegal. 2 See also paragraph 
21, as to Sunday. 

20. Return day is the day on which the writ must be de¬ 
livered back to the officer who issued it. 

21. How time computed. Unless otherwise specially pro¬ 
vided, the time within which an act is required by law to 
be done must be computed by excluding the first day and 
including the last; and if the last be Sunday, it must be 
excluded. 3 For instance: If a writ be issued May 5, re¬ 
turnable within twelve days, May 5 would not be counted, 
and May 17 would be last one of the twelve days. But if 
May 17 be Sunday, then May 16 would be last day on 
which such writ could be served. 

22. As to blank spaces in write. The summons, execution, 
and every other paper made or issued by a justice, must be 
filled up without a blank to be filled by another; otherwise 
it is void. 4 

23. For other important matters as to writs, see Chapter 3; 
and for matters specially relating to each separate writ, such 
as summons, execution, commitment, or mittimus, etc., see 
chapters relating to such writ. 

24. Justice may depute persons to serve process. A justice, at 

1 § 3339. An official return, duly made upon process by an officer 
who is required to take an official oath, such as sheriffs, constables, 
etc., in relation to facts which it is his legal duty to state in such re¬ 
turn, is, as between the parties to the suit, and privies (that is, those 
whose rights are involved in, and necessarily dependent upon it), 
conclusive of the facts stated therein, except in a suit against the 
officer. As to all other persons, than the parties and privies, such 
return is prima facie evidence of the facts therein stated, and subject 
to be disproved whenever it is offered in evidence. But the privity 
above mentioned must be such as would enable the person thus con¬ 
cluded to maintain an action against the officer for a false return to 
such process—that is, one who is so directly interested in the process 
and tne return thereon, that if the return is false, lie would suffer and 
be entitled to damages. Therefore, if A. purchases a horse of B., and 
0., a creditor of B., afterward issues attachment process against B., 
and a false return is made on the attachment, showing that the horse 
was attached—in such case. A., not being a party to the attachment 
proceedings, has no right of action against the officer for the fal=e 
return, and is not therefore concluded thereby, even though it should 
be claimed that the sale of the horse by B. to A. was fraudulent as to 
creditors. Swan’s Treatise, p. 149, citing 14 0. S. 240; Gwynne Sheriffs, 
473; 26 Vt. 750; 4 O. 137. But the return will not be received as evi¬ 
dence on the trial of a case to prove facts not required by the statute 
to be returned by an officer. 17 O. S. 30. 

2 § Leveridge v. Tlaistow, 2 Blacks. 29. 8 § 10216. 

* § 1734. This does not mean that a writ will be void if it contains 
blank spaces, but that it will be void if such a space is left to be filled 
after it is issued. 


WRITS, COPIES THEREOF, ETC, 


39 


the Tequest of a party, and on being satisfied that it is expe¬ 
dient, may specially depute any discreet person of suitable 
age, and not interested in the action, to serve a summons 
or execution, with or without an order to arrest the defend¬ 
ant, or to attach property: such deputation must be in writ¬ 
ing on the process. 1 

25. Authority of suck person—fees. The person so deputed 
has the authority of a constable, in relation to the service, 
execution, and return of such process, and is subject to the 
same obligations; but there can be no fee for his services 
taxed in the bill of costs. 2 

26. When officer is protected by the writ. It is a well estab¬ 
lished principle of law that ministerial officers, being obliged 
to execute process, are protected in the rightful discharge 
of their duty, provided the process issued from a court or magis¬ 
trate having jurisdiction of the subject-matter. If the magistrate 
proceed unlawfully in issuing the process, he, and not the 
constable or marshal, will be liable for the injury. That 
officer is justified, even when the process under which he 
acts is voidable for irregularity or mistake in issuing it. 
The law does not permit such officer, nor his subordinates 
to examine into the regularity of the proceedings of the 
court whose process they execute, nor does it authorize 
them to proceed or to refuse to proceed, as they may judge 
best. 3 

27. But the rule is different where the magistrate is pro¬ 
ceeding in a matter in which he has no jurisdiction. In such 
case, the process itself is void, and can afford no protection.* 

28. When officer may safely obey or disobey the writ. The rule 
that an officer is justified by his process, not void upon its 
face, is only for the protection of the officer; and although 
be may execute such process, yet if it is in fact void for want 
of jurisdiction in the court or officer issuing it, he may re- 

*§ 1732. 2 § 1733. 

8 See Taylor v. Alexander. 6 0.144,147, and cases there cited; Hard¬ 
ing v. Trustees 3 O. 231; Robbins v. Clements, 41 O. S. 285; Harrington 
v. Heath, 15 O. 483; Railway v. Cronin, 38 O. S. 122,125; Beebe v. Scheidt, 
13 O. S. 406, 416; Moore v. Robinson, 6 O. S. 302. See 5. O. C. C. 246-250; 
Henline v. Reece, 54 O. S. 599. 

It is also a general principle of law that whenever magistrates 
are acting within the limits of their jurisdiction, th^ir irregularities as 
to procedure and form are treated with great liberality and indulg¬ 
ence, even in criminal matters, by the higher courts, and they will 
disregard any errors which do not affect the substantial rights of the 
parties. Therefore, if the magistrate has jurisdiction over the subject- 
matter of an action, and the parties are before him by proper process, 
or appearance without process, his judgment is not void, however ir¬ 
regular or erroneous it may be. But if the magistrate attempts to 

f iroceed in any matter in which he has no jurisdiction , and to enforce 
iis judgment therein, his proceedings are absolutely void, and he is 
just as liable for any such act as he would be if he were not a magis¬ 
trate at all; and the'ministerial officer who obeys any writ command¬ 
ing him to enforce such judgmentis also liable as if he were not such 
officer, except that the good faith of such officers would be a miti¬ 
gating circumstance of considerable weight. See same cases as above 
in this note, and § 11573. 


40 CONSTABLES, MARSHALS, ETC. 

fuse to execute it, and no action will lie against him for 
such refusal. 1 

29. For additional matter as to this, see paragraphs 12-23 
of Chapter 22, paragraphs 3, 4, of Chapter 25, and paragraph 
24 of Chapter 37. 

29a. While a ministerial officer is not obliged to serve 
process in his hands, when he has knowledge from other 
sources that the court or officer issuing it was without juris¬ 
diction of the person against whom it is directed, he will, 
nevertheless, be justified in executing it according to its 
command, if regular in form, and the want of jurisdiction 
does not appear on its face. 2 

30. Difference in form of writs issued by justice of the peace and 
mayor. There is but little difference between the forms 
of writs issued by a j ustice and by a mayor, the chief differ¬ 
ence being in the beginning and closing lines and designation 
of office. 

31. The justice generally begins his writ by stating his 

place or Unfits of jurisdiction (called the venue). In most 
civil cases, he begins as follows: “State of Ohio, Butler 
county, Fairfield township, ss.;” or, in cases where his ju¬ 
risdiction extends throughout his county, his venue may be 
“State of Ohio, Butler county, ss.” He directs his writ 
“ To any constable of said township,” or “ To any constable 
of said county.” In the body of the writ he describes him¬ 
self as “a justice of the peace in and for said township,” or 
some similar expression. When he closes, he says: “ Wit¬ 
ness my hand , on this - day of -, 19—,” and signs, 

“C. D., Justice of the Peace,” or merely “C. D., J. P.” 
He has no seal. See paragraph 4, Chapter 3. 

32. The mayor gives his venue as “ State of Ohio, Hamil¬ 
ton county, the municipal corporation of Glendale.” He 
directs his writ “ To the marshal of said municipal corpora¬ 
tion, greeting.” Or in place of the foregoing, he may say, 

“The State of Ohio, - county, the village [or, city] of 

-,” and direct his writ “ To the marshal of said city [or, 

village], greeting,” or he may omit the word “greeting.” 
He describes himself in the body of the writ, “ The un¬ 
dersigned, mayor of said municipal corporation [or, city, or, 
village],” or in some similar -way. His closing line is: 
“Witness my official signature and seal [or, Witness my 

hand and seal], this-day of-, 19—He has a seal. 

See paragraph 4, Chapter 3. He puts his seal on his writs, 
generally at the lower left-hand corner; and he signs his 
writs, “C. D., Mayor.” 

33. Nearlv all blanks in this book are given as for jus¬ 
tices ; but the changes above indicated would make mayor’s 

1 Newburg v. Munshower, 29 O. S. 617; Henline v. Reece, 54 O. S. 
599; lb. 605, and cases there cited. 

2 Henline v. Reece, 54 O. S. 599; lb. 605, and cases there cited. 


WRITS, COPIES THEREOF, ETC. 41 

blanks of them. For two instances of mayor’s blanks, see 
Chapter 37. 

34. There are similar differences between the blanks of a 
justice and of a police justice, or police judge. 

35. Differences between a constable’s and marshal’s returns , etc. 
The only differences between the returns, certificates, etc., 
of a constable and of a marshal are, the constable describes 
himself, if at all, as “A. B., Constable,” and signs as “A. B., 
Constable,” and the marshal describes himself, if at all, as 
“A. B., Marshal,” and signs as “A. B., Marshal.” 

36. Items of fees on writ. The officer serving any writ 
must give thereon an itemized account of his fees, or he is 
not entitled to any fees.* 

37. For examples showing how this is to be done, see, for 
instance, paragraphs 40 and 43 of Chapter 6, paragraph 31 
of Chapter 7, paragraph 35 of Chapter 25, and several 
other places. 

38. Such items are often placed next below the officer’s 
return on the writ, this being generally a convenient and 
suitable place; but they are no part of the return. Read 
paragraph 7 of this chapter, which applies to these items of 
fees as well as to noting the time there mentioned. 

1 See par. 87 of Chap. 6, and par. 7 of Chap. 39. 


42 


CONSTABLES, MARSHALS, ETC, 


CHAPTER 6. 

SUMMONS, RETURN OF, ETC. 

1. Constable has no duties in civil matters till commanded . 
The constable has no duties to perform in civil matters till 
a writ is given to him by the magistrate, commanding him 
what to do. 

2. Generally , summons first writ. In an ordinary civil ac¬ 
tion the first writ so given him is the summons, 1 which 
commands him to notify a certain defendant or defendants, 
to appear before the magistrate to answer to the action of 
the plaintiff on his claim, which is briefly described in the 
writ. 

3-8. Form of summons in ordinary civil action. 

The State of Ohio, Hamilton County, ss: 

To any constable of Springfield township : 

You are hereby commanded to summon G. H., to ap¬ 
pear before me, the undersigned, a justice of the peace, at 
my office in Springfield township, on the 28th day of May, 
a. d. 19 —, at 8 o’clock A. M., to answer the action of E. F. 
who claims of the defendant the sum of $100.00, with 
interest thereon at six per cent, from the 10th day of June, 
a. d. 19— , for goods sold and delivered by plaintiff to 
defendant [etc., as may be). The plaintiff asks a judgment 
for the amount indorsed hereon, and for costs. 

You will make due return of this summons, on the 28th 
day of May, 19—. 

Given under my hand this 20th day of May a. n., 19—. 

C. D., Justice of the Peace. 

9. Form of indorsement on summons — 

Amount (including interest) for which 

plaintiff will take judgment, if you 


fail to appear....$111.30 

Justice’s fees. 2.00 

Constable’s fees. .70 


Total .114.00 


10. Sometimes an order of arrest, or an order of attach¬ 
ment, or a writ of replevin, is given to the constable at the 
same time the summons is. Such cases will be considered 
in chapters following this one, but not here. 

11. Must note on summons time of receiving it. The first 
thing to be done on receiving a summons, is to make a note 

i§ 10233. 







SUMMONS, RETURN OP, ETC. 43 


thereon of the time it was received. 1 See paragraphs 0 and 
7 of Chapter 5. 

12. Summons must be served when. The summons must be 
served on the defendant (or defendants), at least three days 
and not more than twelve days before the day set for the 
trial. 2 

13. Fractions of days not counted. The law does not, how¬ 
ever, take into account fractions of days in such matters. 
Therefore, if the time of trial were, for instance, on the 
eleventh day of April, at 8 o’clock in the morning, the 
summons must be served not later than the eighth of that 
month; but it might be served at any time on the eighth, 
even though it were just before midnight of that day. 

14. But the proper course for the constable to follow is to 
diligently serve all writs as soon as he can after receiving 
them, thus avoiding the danger of something happening to 
prevent his doing so, if he negligently delays till the last 
day allowed by law, and especially till the last hour of that 
day. 

15. How summons served on individuals. A summons must 
be served by delivering a certified copy ol it, and of the indorse¬ 
ments thereon, to the defendant, or by leaving such copy 
at the defendant's usual place of residence. 3 

16. How copy of summons certified, and by whom. The copy 
of the summons so delivered to the defendant, or left at hi? 
residence, must be certified by the officer or person serving 
it ; 3 and the form of such certificate, which should be written 
on the back of the summons, and below the indorsement 
referred to in the preceding paragraph, may be as follows. 

17-19. Form of certificate on copy of summons — 

“ I certify that the within and above is a true copy of the 
original writ, and of the indorsements thereon. 

A. B., Constable (or marshal, etc.) u 

20. Copy of summons left where, is no service. If the defend¬ 
ant has moved away, or has run away, service can not be 
made by leaving a copy at the place which was his place of 
residence. 4 And it will not do to leave a copy at the de¬ 
fendant’s store or other place of business. 5 It must be left 
at his usual place of residence. See par. 15, above. 

21. How to proceed when real name of party is unknown. The 
law provides that when the name of the defendant is not 
known, a description of the defendant under any name may 


1 5 10233. 

2 § 10237. If an officer serves a summons either sooner or later than 
the time specified by law for serving it, such service is void, and is 
no notice to the defendant. 18 Ind. 91. 

3 § 10237. See paragraphs 3 to 9. for forms of summons and indorse¬ 

ments thereon. It may be served by a person not an officer. See para¬ 
graphs 23 and 24, Chapter 5. „ „„„ 

4 Wright’s Rep. 563. 5 Lambert v. Sample, 25 O. S. 336. 


CONSTABLES, MARSHALS. ETC. 


H 

be put into the summons instead of the defendant’s true 
named The summons in such case would read, “ You are 
hereby commanded to summon John Smith, defendant, real 
name unknown ( then would follow a description of defendant ), 
to appear before me,” etc. But unless the description were 
so accurate that no mistake would likely arise, it would be 
best for the plaintiff to go with the officer and point out to 
him the person to be summoned. 2 

22. How summons served on corporations. A summons 
against a corporation, except as specially provided in para¬ 
graphs 23, 24, 27, 28, in this chapter, may be served upon the 
president, mayor, chairman of the board of directors or trus¬ 
tees, or other chief officer; or, if its chief officer is not found 
in the county, upon its cashier, treasurer, secretary, clerk, 
or managing agent; or, if none of the aforesaid officers can 
be found, by a copy left at the office, or usual place of busi¬ 
ness of such corporation, with the person having charge 
thereof; but if the defendant be an incorporated river trans¬ 
portation company, whether organized under the laws of 
the state or another state, the service of a summons may be 
upon the master or other chief officer of any of its steam¬ 
boats or other craft, or upon any of its authorized ticket or 
freight agents, at any port where it may transact business. 3 

23. Service on insurance company. Where the defendant 
is an incorporated insurance company, and the action is 
brought in a county in which there is an agency of the in¬ 
surance company, the service may be upon the chief officer 
of such agency. 4 

24. Service on foreign corporations. If the defendant is a 
foreign corporation, Having a managing agent in the state, 
see paragraphs 29, 30, 31, next page. 

25. Where corporations of another state are authorized 
to do business in this state, on condition that they become, 
so far as remedies and suits against them here, subject to 
the exclusive jurisdiction of the courts of this state, such 
corporations become amenable to the jurisdiction of the 
courts of this state, and the service of process may be the 
same as upon other domestic corporations of a like kind, in 
the absence of any law relating to service upon such for¬ 
eign corporation. 5 

2(5. If there be two or more defendants, and they reside 
in different townships of the county, the constable of the 
township where the justice resides, may serve all the de¬ 
fendants. 6 

1 §§ 10373, 11367. 2 Swan’s Treatise, 56. 

3 § 10238. See note, page 48. * § 10243. 

6 Ins. Co. v. Best, 23 O. S. 105. Swan’s Treatise, Chapter 9, 8 4. 

6 See Swan’s Treatise, Chapter 9 ; § 4 ; G. C., §§ 3334 , 3341 


SUMMONS, RETURN OF, ETC. 


45 


27. Service on railroad companies. In suits against a rail¬ 
road company, the summons may be served by the consta¬ 
ble of the township in which the suit is brought, and must 
be served personally upon the president of such company, 
if he be a resident of the county in which suit is brought, 
or by leaving a certified copy at his place of business, if 
that place be within such county; but if the president of any 
such company is not a resident of the county; or has no 
place of business within the county, the summons may be 
served personally at least eight days before the trial day 
mentioned in the summons, upon the person having charge 
of a ticket office, or freight depot, owned by or under the 
control of such company, if such ticket office or freight de¬ 
pot be situated within the county where such suit was 
brought; but when served upon the president, it may be 
served within the time and in the way prescribed for other 
individuals. 1 

28. If the service can not be made as directed above, 
make return “not found,” as shown in paragraphs 47, 48, 
below. 


29. Foreign corporation. Where the defendant is a for¬ 
eign corporation, having a managing agent in this state, the 
service may be upon such agent.' 2 

30. An express company’s local agent, who keeps an 
office and receives and forwards packages for the company, 
and does all the business usually done at such office, is such 
a managing agent. 3 

31. When service is on a subordinate officer, because the 
president or chief manager is not a resident of the county, 
or has no office therein, that fact must be shown in the re¬ 
turn to the summons or the service will be defective. 4 

32. An acknowledgment of service on the back of the sum¬ 
mons, signed by the defendant, or his voluntary appearance 
at the trial is equivalent to service. 5 

33. Service on minors. If the defendant is a minor under 
fourteen years of age, the service must be upon him (or 
her), and also upon the minor’s guardian, or father; or, if 
neither of these can be found, then upon his mother, or the 
person having the care or control of the infant, or upon the 
person with whom the infant lives. But if none of these 
can be found, service upon the minor alone will be suffi¬ 
cient. 6 

34. If the minor is above the age of fourteen years, serv¬ 
ing on him or her alone is sufficient. 6 

35. The summons may be served upon a minor, and upon 
his parent, guardian, or other person specified in paragraph 


17 6. S. C41. 4 


p note n 48. 2 § 10244. 3 Express Co. v. Johnson, 
Fee*’. Iron Co., 13 O. S. 503. 3 § 10237. • § 10245. 


46 


CONSTABLES, MARSHALS, ETC. 


33 above, either by delivering personally to such minor, 
guardian, parent, etc., a certified copy of the writ, or bv 
leaving such copy at the usual place of residence of the 
person to be served. 1 But it is always best, when practic¬ 
able to serve all writs personally, and this is especially 
true of minors, and if under 14 years of age is impera¬ 
tive. 1 * 

36. Summoning arbitrators or referees. Sometimes differ¬ 
ences between parties to a suit before a magistrate are, by 
agreement of parties, submitted to arbitration of persons 
chosen by such parties. If these arbitrators are not pres¬ 
ent, the magistrate may issue a summons to the constable, 
marshal, or other officer or person, directing the persons so 
selected, to appear at the time and place of the trial by 
them. The officer or person receiving such summons must 
serve it and make return of his doings thereon in substan¬ 
tially the same way as directed in this chapter. 2 

37. Items of officers’ fees must be given, as more fully 
stated in paragraph 35 of Chapter 5, or they may not be 
paid. Such items are no part of the return; 1 but they are 
often stated next below it, as is done, for illustration, in 
paragraphs 40 and 43 below. They may be put elsewhere 
on the writ, however, as well as below the return. 

FORM OF RETURN ON SUMMONS 

38-39. 'When there is but one defendant who was served 
personally — 

On March 24, 19—, served this writ on defendant by 
delivering a certified copy thereof, and of the indorsements 


thereon, to him (or her), personally. A. B., Constable. 
40. Constable’s (or marshal’s) fees on this lorit — 

Service and return. 25 

Copy . 25 

Mileage, 3 miles. 30 


Total . 80 


41-42. Same when there are more than one defendant , 
and all are served personally, same day — 

On April 3, 19—, served this writ on all the defendants 
by delivering a certified copy thereof, and of the indorse¬ 
ments thereon, to them each, personally. 

A. B., Constable. 

43. Constable’s (or marshal’s) fees on this writ — 


Service and return, 5 persons.$1 25 

Five copies. 1 25 

Mileage, 12 miles. 75 


Total .$3 25 


44. Same, token served personally on different days — 
On April 3, 19—, served this writ on the defendants, E. 
F., G. H. and I. J., and on April 4, 19—, on the defendjant 
1 § 10245. Keys v. McDonald, 1 Handy, 287. 2 See § 103G4. 












SUMMONS, RETURN OF, ETC. 


47 


K. L., and on April 6, 10—, on the defendant M. N., by 
delivering a certified copy thereof, and of the indorsements 
thereon, to them each, personally. A. B., Constable. 

45-46. Same, when there is but one defendant, served hi / 
copy left at residence — 

0.n April 4, 19—, served this writ on defendant by leav¬ 
ing a certified copy thereof, and of the indorsements 
thereon, at his {or her) usual place of residence. 

. A. B., Constable. 

47-48. Same, when defendant or defendants not found — 

Defendant (or defendants) not found in my jurisdiction. 

A. B., Constable. 

40-51. Same, when some are served personally, some by 
copy at residence, and on different days, and some not 
found— 

On May 1, 10—, served this writ on defendants C. D. 
and E. F. by delivering a certified copy thereof, and of the 
indorsements thereon, to them each personally, and on 
G. H. by leaving a certified copy thereof, and of the indorse¬ 
ments thereon, at his usual place of residence; and May 
2d, 19—, on defendant I. J. by leaving such copy at his 
usual place of residence, and on defendant K. L. by deliver¬ 
ing such a copy to him personally. The defendants M. N. 
and O. P. not found in my jurisdiction. 

A. B., Constable. 

52-53. Same, on minor under fourteen years of age. 

On May 2, 19—, served this writ, by delivering a certified 
copy thereof and of the indorsements thereon, to defend¬ 
ant C. D. and to F. D., his guardian [or, his father]. 

54. [But if neither father nor guardian can be found, say, 
to defendant C. D. and to G. D., his mother; or, to defend¬ 
ant C. D. and to H. I., the said H. I. having the care of the 
said C. D.; or, the said H. I. being the superintendent of 

the - Children’s Home, and having the custody of said 

C. D. by reason , of his being an inmate of said home, or 
otherwise, as may be; arid in either case add, neither the 
father nor the guardian of said C. D. could be found. 1 

A. B., Constable. 

55. On May 1, 19—, served this writ on defendant, M. S. 
by delivering a certified copy thereof, and of the indorse¬ 
ments thereon, to him personally. Neither father, guard¬ 
ian, mother, nor person having care of said M. S. found. 

A. B., Constable. 

56-58. Same, when served on a railroad company. 

0.n May 1, 19—, served this writ on defendant by deliv¬ 
ering a certified copy thereof, and of the indorsements 
thereon to T. P., president of the within-named railroad 
company, and resident of-township in this county. 

Or say, according to the facts, served this writ on defend¬ 
ant by leaving a certified copy thereof, and of the indorse¬ 
ments thereon, at the place of business of T. P., president 
of within-named defendant railroad company in said 




48 


CONSTABLES, MARSHALS, ETC. 


county; or say, by delivering a certified copy of this writ 
and indorsements thereon to X. Y., station agent [or ticket 
agent, or freight agent, etc.], of the within-named defend¬ 
ant railroad company, who has charge of its ticket office [or 
freight depot, etc., as may be], situate in said county, the 
president of said company having no residence or place of 
business in said county, and the principal business office 

of said company not being kept in this township of -, 

in said county. 1 2 A. B., Constable. 

59-61. Same, when served on a corporation other than a 
railroad company. 

On May 1, 19—, served this writ on defendant by deliver¬ 
ing a certified copy thereof, and of the indorsements there¬ 
on, to T. P., the president; [or say, mayor; or, chairman of 
the board of directors; or, chairman of the board of trust¬ 
ees; or name the office of the officer served, and say: chief 
officer of the within-named corporation; or, if the chief 
officer is not found in the county, then describe the officer 
upon whom the icrit is served, according to his office, as 
thus: “Clerk of the within-named corporation. No chief 
officer of said corporation could be found within the 
county.”] A. B., Constable. 

62-63. Same, when no chief officer, etc., found. 

On May 1, 19—, served by leaving a certified copy of 
this writ, and indorsements thereon, at the office of the 
within-named corporation, with X. Y., the person having 
charge of said office. No chief officer, and no cashier, 
treasurer, secretary, clerk, or managing agent of said cor¬ 
poration could be found within the county. 

A. B., Constable. 

64-65. Another form, served on a foreign corporation. 

On May 1, 19—, served by delivering a certified copy of 
this writ, and indorsements thereon, to X. Y., the manag¬ 
ing agent of the defendant in this state. 

A. B., Constable. 

66. A return by the constable of service of summons in 
these words, “served on the second day of January, 1861, 
by reading,” shows a want of service and not merely a 
defective service or return; and a judgment by default 
based on such service is a nullity .2 

1 See pars. 22, 27, above. §§ 1023S, 10239 and 10240, when con¬ 
sidered together, show that in all suits before a J. P., against corpora¬ 
tions. service must be made as provided in §10238 [par. 22, this chap.], 
except where the defendant is a railroad company, and its principal 
business office is not kept in the township in which suit is brought; 
in which case, and in which case only, summons may be served as 
provided in §§ 10239-40 [par. 27, this chap.] R. R. v. Jenks. [Lucas 
Com. Pleas, 1892, unpublished]. 

In proceedings in error to reverse a magistrate’s judgment against 
a railroad, such judgment must be reversed unless the record shows 
affirmatively [by the petition, by constable’s return, or otherwise], 
that the case is one of those provided for in §§ 10239, 10240. Ib. 

The decision in case of North v. R. R. Co., 10 Ohio St. 548, is not 
now applicable, by reason of changes in statute since that decision was 
rendered. Ib. 

2 Principle applied to Vandevoort v. Trisler, 4 N. P. 37. 



SUBPENA. 


•Ml 


CHAPTER 7 

SUBPENA. 

1. Generally, the second writ which must be served in an 
action is the subpena. 

2. Defined. A subpena is an official notification to one or 
more persons to appear at a time and place therein men¬ 
tioned, and give evidence in a suit or other judicial proceed¬ 
ing before the officer issuing it. 

3. Who may issue, etc. Any justice or mayor may issue 
subpenas to compel the attendance of witnesses to give evi¬ 
dence on any trial pending before himself, or for the pur¬ 
pose of taking depositions, or to perpetuate testimony in 
civil cases; 1 and any such justice, mayor, or police judge 
may issue subpenas and other process to bring witnesses 
before them in criminal cases. In complaints to keep the 
peace, and in cases of misdemeanor, the subpena must be 
served within the county, and in other cases it may be is¬ 
sued to or served in any county. 2 

4. Time of receiving need not be stated. The subpena is the 
only writ on which the time of its receipt by the officer 
serving it need not be stated. 3 

5. Who may serve, etc. A subpena may be served by a 
constable or any other person. 4 

6. How served. It must be served by reading it, or by 
stating its contents to the witness, or by leaving a copy 
thereof at his usual place of residence. 5 

7. It will be noticed that the law in the preceding para¬ 

graph does not authorize a subpena issued by a magistrate 
to be served by giving a copy thereof to the witness , as a sum¬ 
mons may be served on a defendant. If the witness can 
not be found, the subpena may then be served by leaving a 
copy at his residence. This is probably to prevent costs 
from being so greatly increased as they could be by serving 
many witnesses with copies at 25 cents per copy. 6 ^ 

l §§ 10314, 4548. 2 § 13495. 3 § 3338. See par. 30, Ch. 3. 

4 § 10315. When not served by a constable or some person deputed 

for that purpose by a justice, no fee can be charged in the suit for 
serving it. § 10316. 

This is true also of subpenas to take depositions. § 11501. 

5 § 10315. 

e But the more general provisions of section 11505, applicable chiefly 
to the higher courts, provides that “The subpena shall be served 
either by reading or by copy delivered to the witness, or left at his 
usual place of residence; but such copy need not contain the name 
of any other witness.” It is therefore not unusual for constables and 


50 


CONSTABLES, MARSHALS, ETC. 


8. Witness may demand fees in advance. In civil cases 
only, a witness may demand his traveling fees, and fee for 
one day’s attendance when the subpena is served on him; 
and if these be not paid, the witness is not obliged to obey 
the subpena. The fact of such demand and payment or 
non-payment must be stated in the return by the officer. 1 

9. Witness fees and mileage. Witnesses in civil or crim. 
inal cases before justice or mayor are entitled to fifty cents 
a day as witness fees, and to five cents per mile for each 
mile from the place of residence to the place of trial, and 
the same mileage returning to their homes. That is, they 
are entitled to mileage both ways. But no mileage can be 
allowed in any case where the distance from the place of 
residence of the witness to the place where he shall be 
called upon to testify i3 less than one mile. 3 

10. Return of miles by officers. For the purpose of ascertain¬ 
ing the mileage to which a witness is entitled, the officer 
serving a subpena must indorse on it the number of miles 
to which each witness is entitled. 2 

11. To whom directed. The subpena must, in civil cases, be 
directed to a person therein named, requiring him to attend 
at a particular time and place, to testify as a witness ; 4 and to 
the officer, in criminal cases. 5 This does not mean that 
only one person can be named in the subpena. 

12. Subpena “duces tecum” The subpena may contain a 
clause directing the witness to bring with him any book, 
writing, or other thing under his control, which he may be 
compelled to produce as evidence,, In such case it is called 
a “subpena duces tecumf these last two words meaning “you 
must bring with you.” An ordinary subpena is changed 
into a subpena duces tecum by adding, at the (*) in the form 
next below, the words “ and to bring with you and produce 
at the time and place aforesaid, a certain deed o^ book,” 
etc., as may be, briefly describing it. 

13-17. Form cf subpena , in civil case. 

The State of Ohio, Hamilton County, 1 

Springfield Township. / 6 * 

To C. D., E. F., L. H., I. K., L. M., N. O., P. Q. and R. S. 
You are hereby commanded to appear before me, the un¬ 
dersigned, a justice of the peace of said township, at my 
office therein, on the 28th day of May, A. D. 19—, at 8 
o’clock A. M., to give testimony, and the truth to say, in a 
cause pending before me, wherein E. F. is plaintiff and 
G. H. is defendant (*). Hereof fail not under penalty of 
the law. 

Given under my hand this 20tli day of May, a. d. 19—. 

C. D., Justice of the Peace. 

marshals to serve subpenas on witnesses by copy delivered to the 
witness personally, but to make no charge for the copy. Whether such 
service is void or not has never been decided by our courts. 

i § 11508. ^ § 3013. 3 $ 3012 . * § 1 1503. * See par. 3 above. 


SUBPENA. 


51 


18-22. Form of subpena, in criminal case. 

The State of Ohio, Hamilton County, ss. 

To any Constable of the County, Greeting: 

You are commanded to summon C. D., E. F., L. H., I. K., 

L. M., N. O., P. Q. and R. S. to appear before me, the un¬ 
dersigned, a justice of the peace in and for said county, at 
my office therein, on the 28th day of May, 19—, at 2 
o’clock p. m., to give testimony, and the truth to say, 
touching a complaint made on behalf of the State against 
G. H. And hereof fail not, under the penalty of one 
hundred dollars, and have you then and there this writ. 

Given under my hand this 20tli day of May, A. d. 19—. 

C. D., Justice of the Peace. 

23. It will be noticed that the subpena in civil cases is 
directed to the witness , while the one in criminal cases is di¬ 
rected to the ministerial officer. But they are both served 
alike, and the form of certificate and of return , given below, 
is the same for both subpenas. 

24. How many witnesses named in copies , etc. Only one wit¬ 
ness need be named in the copies served, 1 but that one 
must be the one at whose residence that copy is left. To 
illustrate: In the following return, it appears that I. K., L. 

M. and N. O. were served by copy. In I. K.’s copy, he only 
need be named; in L. M.’s copy, L. M. only, and in N. O.’s 
copy, N. O. only, although in the original , all these and 
others are named. But in such case, it would not be proper 
service to leave L. M.’s copy at N. O.’s residence, etc. 

25. A certificate must be indorsed on each copy served, as 
is fully explained in paragraphs 11-14 of Chapter 5. 

26-29. Form of return on subpena (on the original writ only.) 

May 28, 18—, I served the w r ithin writ on the within- 
named C. D., E. F. and L. H. by reading the same to them 
personally (or, by stating the contents thereof to them per¬ 
sonally), and on I. K., L. M. and N. O.'by leaving a certi¬ 
fied copy thereof at the usual place of residence of each of 
them. R. S. not found. 2 C. D. is entitled to mileage for 
two miles, E. F. for five miles, L. M. for one mile, and N. O. 
for four miles. P. Q. demanded his fees, which were not 
paid. A. B., Constable. 

30. Other forms of returns can easily be adapted from the 
above, for one person only served personally, or by copy, 
etc., in the same way as directed in the case of returns to 
the summons, in Chap. 6. 

31. Constable’s fees on this writ. 

Service and return for 7 persons.$0 85 

Three copies, 25 cents each.. 75 

Mileage,* 15 miles. 90 

Total...$2 50 

i § 11505. 2 See par. 34 of Chap. 3. 3 In my opinion a constable 

can only charge mileage for the shortest distance necessary to be 







52 


CONSTABLES, MARSHALS, ETC. 


32-34. Another form of return. 

I served this writ on the witnesses named within and be¬ 
low on the days and in the manner indicated opposite their 
respective names, C. P. meaning “By delivering a certified 
copy of this subpena to this witness,” C. C. meaning “By 
leaving a certified copy of this subpena at this witness’s usual 
place of residence,” R. meaning “By reading the subpena 
to this witness,” S. meaning “By stating the contents of 
this subpena to this witness.” The other within-named 
witnesses not found in my jurisdiction. The figures in the 
“miles” column indicate the distance from witness’s resi¬ 
dence to place of trial. In the “Fees ” column, F. N. means 
that witness demanded his fees, which were not paid, and 
F. P. means that witness demanded his fees and was paid 
fees and mileage for one day. 


NAMES OF 
WITNESSES. 

HOW SERVED. 

DATE OF SERVICE. 

MILES. 

FEES. 

E. F . 

C. C. 

May 10, 19 —. 

2 

F. N. 

L. H . 

C. P. 

May 10, 19— . 

4 

F. P. 

I. K . 

R. 

May 10, 19 —. 

1 


L. M. . 

S. 

May 11, 19 —. 



N. 0 . 

R. 

May 13, 19—. 

5 


Etc. 

Etc. 

Etc. 




A. B., Constable. 

traveled in order to serve all the persons named in a subpoena. Where 
several witnesses reside at the same place, he can not charge full 
mileage for each, but only one for all of them. I think that a consta¬ 
ble is entitled to charge twenty-five cents for a copy of subpoena where 
the subpena is served by copy. A subpena is certainly a writ, and in 
Section 3347 the language is general, “for copies of all writs .... 
served, twenty-five cents,” no exception being made in respect to sub- 
penas.—Opinion of Lawrence, Att’y-General, (1885). Vol. G, 292. 


















SUMMONING JURY, ETC. 


53 


CHAPTER 8. 

SUMMONING JURY, HAVING CHARGE THEREOF, 

ETC. 

1. About summoning juries. It will often happen in such 
cases as are now under consideration, that a trial by jury 
will be demanded, and that at some time after the sum¬ 
mons is issued and before the trial comes off, the consta¬ 
ble or marshal will be ordered to summon a jury. 

2-5. Form of summons for jury — 

The State of Ohio. \ 0£> 

-County. / ss * 

To any constable, of - township , greeting: 

You are hereby commanded to summons ( here the persons 
selected for jurors are named) to appear before me, at my 
office in said township, on the 28ta day of May 1 , a. d. 19—, 
at 8 o’clock, a. m. (or forthwith), to serve as jurors in a 
case pending before me, then and there to be tried, and 
this they shall in no wise omit. And have you then and 
there this writ, with your doings thereon. 

Given under my hand, this 27th day of May, a. d. 19—. 

C. D., Justice of the Peace. 

6. How such summons served. The law provides that the 
constable (or other officer) must serve such summons by a 
personal service thereof, and must return the original sum¬ 
mons to the magistrate at the time appointed for the jury 
trial, having first made a return thereon, showing what per¬ 
sons were summoned. 1 But the law does not provide in what 
manner such personal service must be made, as it does in the 
case of the summons 2 and subpenas. 3 It is probable that 
it would be sufficient service to read the summons to the 
juror, or to state its contents to him, or to give him a certi¬ 
fied copy of the summons. If the latter course is adopted, 
only the name of the juror to whom the copy is given need 
be written in his copy. 4 

7-9. Form of certificate on copy of summons given to juror — 

I certify that the within is a true copy of the original writ. 

A. B., Constable. 

10-12. Form of return on the original summons for jury — 

On May 27, 19—, I personally served this writ on the 
within named ( here give the names of all served on that 

10343. 2 Pee Chapter 6, paragraph 15. 

3 See Chapter 7, paragraph G. * See paragraph 24, Chapter 7. 


54 


CONSTABLES, MARSHALS, ETC. 


day. If not all served on that day, say also, and on May 2S, 
19—, i served said writ on —and here mention all served 
on that day; and so on, according to the facts. If any of 
them, X. Y., for instance, could not he served, say, X. Y. 
not found.) A. B., Constable. 


13. Constable's fees on this writ — 
Summons.. 

00 

Six copies, 25 cents each. 

Mileage, 7 miles. 

. 1 50 

. 50 

Total. 

.$3 00 


14. A constable has no right to demand in advance his 
fees for summoning a jury. 1 

15. l 'he constable must be present at the trial, 2 and when every¬ 
thing is ready for trial, he will call the names of the jurors 
who have been summoned. 3 

16. Talesmen. If, from challenge or other cause, the panel 
shall not be full, the constable may fill it in the same man¬ 
ner as is done by the sheriff in the Court of Common Pleas.* 

17. In such case, in that court, the sheriff must summon 
a sufficient number of talpsmen to make up the deficiency, 4 
but no person known to be in and about the court-house 
can be selected without the consent of both parties. 5 

18. Jury under charge of constable, etc. After the jury shall 
have been sworn, they must sit together, and hear proofs 
and allegations of the parties; and, after hearing them, must 
be kept together in some convenient place, under the charge 
of a constable, until they have agreed upon their verdict, or 
shall be discharged by the justice. 6 

19. The officer having the jury under his charge, must not 
suffer any communication to be made to them, or make 
any himself, except to ask them if they have agreed upon 
their verdict, unless by order of the court; and the consta¬ 
ble must not, before their verdict is rendered, communicate 
to any person the state of their deliberations, or the verdict 
agreed upon. 7 

20. View of the property or place by jury. The court, when 
of opinion it is proper for the jurors to have a view of the 
property which is the subject of litigation, or of the place 
in which any material fact occurred, may order them to be 
conducted in a body, under the charge of an officer, to the 
place, which must be shown to them by a person appointed 
by the court for that purpose; and while the jurors are thus 
absent, no person, other than the person so appointed, shall 
speak to them on any subject connected with the trial. 8 

1 Moriarity v. Devine, 1 O. C. C. 82. 2 § 10345. 3 § 10345. 

4 § 11431. Not repealed by implication. 11 O. C. C 24, 31. 

5 §§ 11434, 4553. 6 § 10349. 7 § 11449. 

8 § 11448. Such view is solely to enable the jury to apply the evi¬ 
dence offered on the trial. 54 O. S. 344. 







SUMMONING JURY, ETC. 


55 


21. May ask court as to law, etc. After the jury have retired 
for deliberation, if there be a disagreement between them 
as to any part of the testimony, or if they desire to be 
informed as to any part of the law arising in the ease, 
they may request the officer to conduct them to the court, 
where the information upon the matter of law must be 
given, and the justice or mayor may give his recollection 
as to the testimony on the point in dispute, in the presence 
of, or after notice to, the parties or their counsel. 1 The 
officer in charge of them must then conduct them back 
to their place of deliberation; and then act as directed in 
paragraph 19, above. 

22. There are similar provisions as to the jury in the trial 
of criminal cases. 2 

1 § 11452. 2 See §§ 13CSS-90. 


56 


CONSTABLES, MARSHALS, ETC. 


CHAPTER 9. 


TRIAL OF CASE, AND MINISTERIAL OFFICERS’ 
DUTIES THEREAT. 


1. The constable , being the ministerial officer of the jus¬ 
tice’s court, 1 is in duty bound to be present at the trial of 
all cases, to preserve order, to execute such subpenas, at¬ 
tachments of witnesses or jurors as may be in contempt, to 
have charge of the prisoners in criminal cases, etc., and to 
perform such other similar duties as the law or the magis¬ 
trate may require. 

2. The marshal, being the ministerial officer of the mayor’s 
court, 2 must in like manner and for like reasons be present 
at the trial of all causes in that court. 

3. Having charge of jury. During the deliberations of the 
jury, if there be a jury in the case, it will be in charge of 
the constable or marshal, as more fully stated in Chapter 8. 

4. This applies to trial of criminal cases as well as to the 
trial of civil cases. As to criminal trials, see Chapter 28. 

1 See par. 8 of Chap. 3. 2 See Chap. 3. 


ATTACHMENT FOR WITNESS OR JUROR. 


57 


CHAPTER 10. 


ATTACHMENT FOR WITNESS OR JUROR. 


1. Compelling absent witness or juror to attend. It sometimes 
occurs that a witness w r ho has been duly subpenaed, or a 
juror who has been duly summoned, does not obey the writ 
and is absent at the time of trial. In suoh cases, the mag¬ 
istrate whose writ is thus disregarded may issue a warrant, 
or attachment, for the arrest of such witness or juror, and 
commanding the ministerial officer to bring such delinquent 
before the magistrate to answer for his disobedience and to 
compel him to perform his duty. 1 

2-7. Form of such warrant or attachment. 

State of Ohio,-county, ss. 



Before C. D., justice of the peace of 
[etc., or, mayor of, etc., as may be]. 


To any constable of said township: 

Whereas, it appears by proof to the satisfaction of the 
undersigned, a justice of the peace in and for said township 
[or, mayor, etc.], that P. Q. has been duly subpenaed [or, 
summoned] according to law, to appear before me, at my 
office, on the 28th day of May, a. d., 19—, at 8 o’clock 
a. m., to testify [or, act as juror] i,n the above stated case<; 
and it also appearing as above that [if a untness, his 
testimony is material and that] he has neglected or refused 
to attend as required: 

You are therefore commanded to arrest and bring the 
said P. Q. before me, the said justice of the peace, at my 
office in said township, forthwith [or, state the time, if not 
forthwith ], to testify [or, act as juror] in the said case, 
and to answer to the State of Ohio- for the said disobedience. 
And of this writ make legal service and due return. 

Given under my hand, this 28th day of May, A. d. 19—. 


C. D., Justice of the Peace. 


8. ffoio such writ served and arrest m t ade. The person 
named in such writ is arrested in the same way as is 
described in Chapter 22. No copy of the writ is required 
in such case. 

9-10. Form of return on icrit. 

May 10, 19—. I have the body of the within named P. 
W. now in court. A. B., Constable.* 

_ 1 §§ 10318, 10320, 10344. Notary may issue such writ, 50 O. S. 618. 


58 


CONSTABLES, MARSHALS, ETC. 


11. Constable's fees on this writ. 


Service and return.$ .40 

Mileage, two miles.25 

Total.65 


12. Punishment of witness for contempt , etc. When a person 
arrested is brought before the justice, or when a person in 
attendance refuses to testify as a witness, and no valid ex¬ 
cuse be shown, the justice may impose a fine on him not 
exceeding five dollars; an entry of such fine, stating the 
reason therefor, must be made by the justice in his docket, 
and it then has the effect of a judgment in favor of the 
State of Ohio against the delinquent, and can be enforced 
against his person or property. 1 

13. The manner of such enforcement is stated in Chap¬ 
ters 11 to 18, from which it appears that the constable, 
etc., may have further duties to perform concerning such 
witness. And all this applies to jurors as well as to wit¬ 
nesses.* 

14. Certain distinctions. An examination of Chapter 37 

will show that the provisions against delinquent witnesses 
subpenaed to have their depositions taken are more exten¬ 
sive and severe than those in this chapter against such de¬ 
linquents in trials of cases before magistrates. For this 
reason, and to avoid confusing the officers serving writs, 
these provisions are put in separate chapters. 3 _ / 

1 § 10319. Every person so subpenaed and neglecting to appear or 
refusing to testify, is also liable to the party in whose behalf he shall 
have been subpenaed, for all damages which such party shall sustain 
by reason of such delinquency. § 10320. 

2 § 10344. 

3 That the power of the magistrate to punish witnesses for disobey¬ 
ing the subpena in trials before him is limited to the provisions of 
this chapter seems clear, since § 10490 provides that “the provisions 
of title one of part third of the revised statutes, which are in their 
nature applicable to the proceedings before justices, and in respect of 
which no provision is made in this title, are applicable to the proceed¬ 
ings before justices of the peace.” But provision is made as to pun¬ 
ishment of such witnesses, and therefore the provisions of Chap. 37 
do not apply to witnesses in trials before magistrates. 





EXECUTION, ETC. 


59 


CHAPTER 11. 

EXECUTION—ISSUANCE, KINDS AND FORMS OF. 

1. Execution defined , etc. Execution, in law, is putting the 
sentence of the law in force. In civil actions, it is the man¬ 
ner of getting the debt or damages or other thing for which 
j udgment has been obtained. 

2. The writ of execution. The writ of execution is the 
written command of the justice or other judicial officer to 
the constable or other ministerial officer, directing him to 
carry into effect the judgment rendered. 

3. Issuing execution. The magistrate who renders a j udg- 
ment for the payment of money, or his successor, must 
issue to some constable of his township, or to the marshal 
of his municipal corporation, an execution to enforce such 
judgment, within five years of its date or its revivor, or of 
the last execution issued thereon, unless the judgment 
creditor directs otherwise; 1 and any justice of the peace 
may issue executions on any judgments on the docket of 
any other justice of his township who may be unable to 
issue such executions in consequence of sickness, absence, 
or any other cause. 2 

4. Execution , by whorm issued , and to whom directed. The 
execution must be directed to a constable of the county, 
and subscribed by the justice by whom the judgment was 
rendered, or by his successor in office, or by the justice in 
whose hands the docket of any justice of the township has 
been placed, in consequence of the justice who may have 
rendered judgment being unable to issue by reason of sick¬ 
ness, absence, or any other cause. 3 

5. Other requisites. It must bear date the day of its deliv¬ 
ery to the officer to be executed. It must intelligibly refer 
to the judgment, by stating the names of the parties, and 
the name of the justice before whom, and of the county 
and township where, and the time when, it was rendered; 
the amount of the judgment, and if less than the whole is 
due, the true amount due thereon. 3 

It must, in all cases, direct the officer to make return of 
the execution, and a certificate thereon, showing the man* 

1 Sep § 10399. 2 § 10415. 8 § 10417. 


60 


CONSTABLES, MARSHALS, ETC. 


ner in which he has executed the same, in thirty days from 
the time of his receipt thereof. 1 

6. Different kinds of executions. The statutes classify exe¬ 
cutions issued by magistrates, and direct concerning them, 
as follows: 

7. If it be a case where the defendant can not be ar¬ 
rested, the execution must direct the officer to collect the 
amount of the judgment out of the personal property of 
the debtor, and pay the same to the party entitled thereto. 2 
It is this kind of execution that is most frequently issued 
by magistrates, and it will be further considered in para¬ 
graphs 12-16, below. 

8. If it be a case where any of the judgment debtors are 
certified on the docket as surety, the execution must com¬ 
mand that the money be made of the personal property of 
of the principal debtor, and for want thereof, of the per¬ 
sonal property of the surety. In such cases the personal 
property of the principal, subject to execution within the 
jurisdiction, must be exhausted before any of the property 
of the bail can be takep in execution. 3 For form, see para¬ 
graphs 20-24, below. 

9. If it be a case where the defendant may be arrested 
in addition to the foregoing, it must direct the officer, if 
sufficient property of the defendant, subject to the execu¬ 
tion, can not be found to satisfy the judgment, that he ar¬ 
rest the debtor, and commit him to the iail of the county, 
until he pay the judgment or be discharged according to 
law, unless the execution be accompanied by an order of 
arrest, as hereinafter provided in Chapter 2(3. 3 

10. When the execution is on a judgment against joint 
debtors, upon one or more of whom the summons was not 
served, the execution must contain a direction to collect 
the amount out of the joint property of all the defendants, 
or the separate property of the persons upon whom the 
summons was served, to be specified by name. If such 
judgment be also such that the defendants are subject to 
arrest thereon, the justice must further specify the names of 
those defendants served with the summons, who may be 
arrested for want of property. 4 

11. Execution for costs. Execution for costs may be issued 
at the instance of parties interested, or the magistrate may 
for his own benefit issue such execution for costs due in 
cases tried before him. 5 

12-16. Form of common execution against personal property— 
The State of Ohio,-County,-Township, ss. 

To any constable of said county : 

Whereas, on the-day of-, a. d. 19— (the date of 

i § 10417. 

s | 10417. For procedure when the judgment is against a township, 
see 0 3276. 

a 5 10417. 4 § 10418. s §§ 3028, 10416. 




EXECUTION, ETC. 


61 


the judgment) , E. F. obtained a judgment against G. H., be¬ 
fore me, the undersigned, a justice of the peace for said 

township, for the sum of -dollars-cents, and - 

cents costs [if part of the judgment has been paid, here add: 

upon which there remains due the sum of-dollars and 

-cents, with interest from the - day of -, a. d. 

10—, until paid, with increase costs, etc.], (in the two preced¬ 
ing blank spaces are stated only the judgment creditor's costs. The 
unpaid costs made or caused by the party or parties against whom 
the judgment is rendered , must be indorsed on this writ as “ judg¬ 
ment debtor’s costs ”) 

You are therefore commanded to collect the amount of 
said judgment, with costs indorsed and increase, out of the 
personal property of the said G. H., and pay the same to the 
party entitled thereto; and make return of this execution 
and a certificate thereon, showing the manner in which 
you have executed the same, in thirty days from the time 
of your receipt hereof. 

Given under my hand, this-day of-, 19—• 

C. D., Justice of the Peace. 

17-19. Form of indorsement on executions. The following is 
the form of the indorsements on the execution, referred to 
above, the items varying in accordance with the facts in 


each case: 

Amount of judgment debt.$249.70 

Judgment creditor’s costs. 1.20 

Judgment debtor’s costs. 3.60 

Interest. 18.72 

This execution and filing... 40 

Constable’s fees on this writ — 

Service and return. 40 

Mileage, 2 miles. 25 

Four per cent. 10.72 

Advertising. 25 

Storage. 1-00 

( Etc ., if other items ). 


Total.$286.24 

20-24. Form of execution against chattels or body in special 
cases — 

The State of Ohio,-County,-Township, ss. 

To any constable of said county: 


Whereas, on the-day of- , a. d. 19— E. F. obtained 

a judgment against G. H. [if so, say, principal debtor, and E. 
O., his surety, or. and E. O. and F. P., his sureties; or, if G. H. 
was sued as executor, administrator, guardian, etc., say, against 
G. H., as administrator (etc.) of the estate of G. Q., de¬ 
ceased, or otherwise, according to the facts], before me, the un¬ 
dersigned, a justice of the peace for said township, for the 















62 


CONSTABLES, MARSHALS, ETC. 


sum of -dollars - cents, and -dollars and —— 

cents costs. 

[In the two preceding blank spaces, only the judgment creditor's 
costs are stated. The unpaid costs made or caused by the party 
or parties against whom the judgment is rendered must be indorsed 
on this writ as “ judgment debtor's cost." For form of in¬ 
dorsement and items of fees, see paragraph 19, above. If part 
of the judgment has been paid, upon which is due the sum 

of - dollars and - cents, with interest from the 

-day of-, 19—, until paid, with increase costs, etc*] 

You are therefore commanded to collect the amount of said 
judgment, as above stated due, with costs indorsed and in¬ 
crease, out of the personal property of the said G. H. [if so, 
certified on my docket to be the principal debtor, and for 
want thereof you make the same of the personal property 
of the said E. O. and F. P., certified as aforesaid to be sure¬ 
ties, or, out of the personal property which was of the said 

G. Q. at the time of his death, and in the hands of said G. 

H. yet to be administered], and pay said moneys to the 
party entitled thereto. 

If the execution is also for the arrest of the judgment debtor, 
here will be added: And the said judgment being rendered 
in a case where the said G. H. is subject to arrest and im¬ 
prisonment by virtue of an order of arrest before judgment, 
executed, if therefore sufficient property of the said G. H. 
(etc.), subject to this execution, can not be fcund to satisfy 
said judgment, as above stated due, and costs, then you are 
further commanded to arrest the said G. H., and commit 
him to the jail of said county until he pay said judgment, 
as above stated due, and costs, or until he be discharged 
according to law. 

Make return of this execution and a certificate thereon, 
showing the manner in which you have executed the same, 
in thirty days from the time of your receipt hereof. 

Given under my hand, this - day of -, 19—. 

C. D., Justice of the Peace. 

25-30. Form of execution after judgment for costs. — 
The State of Ohio, - County, ss. 

To any constable of - township: 

Whereas, in a certain action lately prosecuted before the 
undersigned, C. D., a justice of the peace (or, before U. V., 
a former justice of the peace 1 in and for said township 
and county, wherein E. F. was plaintiff and G. H. was 
defendant, the costs of the said G. H. (or, E. F.) were 

taxed at-dollars and-cents, and judgment therefor 

was rendered on the - day of -, a. d. 19—. 

You are therefore commanded, that of the goods and 
chattels of said-, you cause to be made the costs afore¬ 
said, with interest thereon from the-day of-, 19—, 

until paid, and costs that may accrue. 













EXECUTION, ETC. 


63 


Make return of this execution and a certificate thereon, 
showing the manner in which you have executed the same, 
in thirty days from the time of your receipt hereof. 

Given under my hand, this-day of-, 19—. 

C. D., Justice of the Peace. 

31-34. Form of indorsement and constable's items of fees on 
such execution — 

Costs stated within.$ 

Interest on same. 

This writ and filing. 

Constable's fees on this writ — 

Service and return. 

Mileage, -miles. 

Four per cent.. 

Advertising. 

Storage.. 

Summoning and swearing appraiser.. 

(Other items, if any ). 


Total.$ 

35. When a constable has levied on goods and chattels 
which remain unsold, the justice issues an order, command¬ 
ing any constable to whom the same may be directed or 
delivered, to expose such property to sale. 1 This writ is 
called a venditioni exponas. 

36-41. Form of order of sale of property levied on {venditioni 
exponas )— 

State of Ohio,-County,-Township, ss. 

To any constable of said county : 

You are hereby commanded, that the personal property 
of G. H, to wit {here follows a description of the property ), which 
you (or, A. R., late constable of said county) levied upon, 
and which remains unsold, you expose for sale, to satisfy as 

well a certain j udgment obtained on the - day of -, a. 

d. 19—, by E. ~F. against G. H., before the undersigned, a 

justice of the peace of said township, for the sum of - 

dollars and-cents, and the costs, being-dollars and 

- cents [on which judgment and costs there has been 

paid - dollars and - cents, leaving a balance due 

thereon of - dollars and - cents], with interest on 

the same from the-day of-, a. d. 19—, till paid, as 

also the costs of increase. 

Make return of this execution and a certificate thereon, 
showing the manner in which you have executed the same 
in thirty days from the time of your receipt hereof. 

Given under my hand, this-day of-, a. d. 19—. 

C. D., Justice of the Peace. 


i § 10416. 
























64 


CONSTABLES, MARSHALS, ETC. 

42-46. Form of indorsement and constable's items of fees on or¬ 
der of sale — 

Amount of judgment debt.$ 

Judgment creditor’s costs. 

Judgment debtor’s costs. 

Interest. 

Costs on former execution. 

Justice’s costs on this writ. 

Constable's fees on this writ — 

Service and return. 

Mileage, -miles. 

Four per cent. 

Advertising. .... 

Summoning and swearing appraisers. 


Total. 














EXECUTION—EXEMPTIONS. 


65 


CHAPTER 12. 


EXECUTION, CONTINUED — PROPERTY EXEMPT 
FROM EXECUTION. 

1. The provisions contained in this chapter with respect 
to exemptions apply to all courts in this state, including 
justices of the peace and mayors’ courts, so that a person 
is entitled to all the exemptions in any case or proceeding, 
or before any court or officer, that he may be entitled to in 
any other case or proceeding, or before any other court or 
officer. 1 

2. Property of unmarried women exempt from execution. 
Every unmarried woman may hold the following property 
exempt from execution, attachment, or sale, to satisfy any 
judgment or order, to wit: 1. Wearing apparel, to be se¬ 
lected by her, not exceeding in value one hundred dollars. 

2. One sewing-machine. 3. One knitting-machine. 4. A 
Bible, hymn-book, psalm-book, and any other books not 
exceeding in value twenty-five dollars.* 

3. Exemptions to heads of families avd widows. Every per¬ 
son who has a family, and every widow, may hold the fol¬ 
lowing property exempt from execution, attachment, or 
sale, for any debt, damages, fine, or amercement, to wit: 
1. The wearing apparel of such person or family; the beds, 
bedsteads, and bedding necessary for the use of the same; 
one cooking-stove and pipe; one stove and pipe used for 
warming the dwelling; and fuel sufficient for the period of 
sixty days, actually provided and designed for the use of 
such person or family. 2. One cow, or, if the debtor owns 
no cow, household furniture, to be selected by him or her, 
not exceeding thirty-five dollars in value; two swine, or 
the pork therefrom, or, if the debtor owns no swine, house¬ 
hold furniture, to be selected by him or her, not exceeding 
fifteen dollars in value; six sheep, the wool shorn from 
them, and the cloth or other articles manufactured there¬ 
from, or, in lieu thereof, household furniture, to be selected 
by the debtor, not exceeding fifteen dollars in value; and 
sufficient food for such animals for the period of sixty days. 

3. The Bibles, hymn-books, psalm-books, testaments, and 
school-books used in the family, and all family pictures. 

4. Provision actually provided and designed for the use of 


i§ 11728. 


2§ 11721. 


66 


CONSTABLES, MARSHALS, ETC. 


suck person or family, not exceeding fifty dollars in value, 
to be selected by the debtor; and other articles of house¬ 
hold and kitchen furniture, or either, necessary for such 
person or family, to be selected by the debtor, not exceed¬ 
ing fifty dollars in value. 5. One sewing-machine; one 
knitting-machine; and the tools and implements of the 
debtor necessary for carrying on his or her trade or busi¬ 
ness, whether mechanical or agricultural, to be selected by 
him or her, not exceeding one hundred dollars in value, 
ti. The personal earnings of the debtor, and the personal 
earnings of his or her minor child or children, for three 
months, when it is made to appear, by the affidavit of the 
debtor, or otherwise, that said earnings are necessary to the 
support of such debtor, or of his or her family ; and such 
period of three months must date from the time of issuing 
any attachment or other process, the rendition of any judg¬ 
ment, or the making of any order, under which the attempt 
may be made to subject such earnings to the payment of a 
debt. But only 90 per cent of such earnings of the debtor are 
exempt, if the debt is for necessaries furnished him or his 
family, etc. 7. All articles, specimens, and cabinets of natural 
history or science, whether animal, vegetable, or mineral, 
except such as may be kept or intended for show or exhibi¬ 
tion for money or pecuniary gain. 1 And all of this applies 
to non-residents as well as to residents of the state. 2 

4. Married woman has same exemptions as heads of families. 
When a married woman sues or is sued alone, like proceed¬ 
ing are had, and judgment may be rendered and enforced, 
as if she were unmarried, and her separate property and 
estate are liable for the judgment against her, but she is 
entitled to the benefit of all exemptions to heads of fami¬ 
lies. 3 

5. Special exemption to physicians, draymen , farmers, etc. 
Every person who is the head of a family, and engaged in 
the business of draying for a livelihood, is entitled to hold, 
in addition to the exemptions specified in the preceding 
paragraph, one horse, harness, and dray exempt from exe¬ 
cution ; every head of a family who is engaged in the busi¬ 
ness of agriculture is entitled to hold, in addition to the ex¬ 
emptions provided for in the preceding paragraph, exempt 
from execution, one horse, or one yoke of cattle, with the 
necessary gearing for the same, and one wagon; and every 
head of a family who is engaged in the practice of medicine 
is entitled to hold, in addition to the exemptions specified 
in said paragraph, one horse, one saddle and bridle, and 
also books, medicines, and instruments, pertaining to his 
profession, not exceeding one hundred dollars in value, ex¬ 
empt from execution. 4 

6. Certain property of benevolent societies exempt. The regalia, 
insignia of office, journals of proceedings, account-books, 

1 § 11725 (93 y. 316). See 49 O. S. 651. 

2 Sproul v. McCoy, 26 O. S. 577. 

3 § 11591. See 47 O. S. 429: 50 O. S. 417; 52 O. S. 468. 

4 § 11726. See note to par. 22, below. 


EXECUTION—EXEMPTIONS. 


67 


and the private work, belonging to any benevolent society 
in this state, are exempt from seizure or sale to satisfy any 
judgment or decree hereafter rendered against such so¬ 
ciety. 1 

7. Beneficiary funds to be exempt from execution. Any bene¬ 
ficiary fund, not exceeding five thousand dollars, set apart, 
appropriated, or paid, by any benevolent association or so¬ 
ciety, according to its rules, regulations, or by-laws, to the 
family of any deceased member of such family, will not be 
liable to be taken by any process or proceedings, legal or 
equitable, to pay any debt of such deceased member. 2 

8. Certain property of certain companies exempt from execration. 
A railroad company which has begun and partly built its 
road, but is unable to finish and operate the same for w r ant 
of means, may take subscriptions conditioned that the pro¬ 
ceeds thereof shall not be used or applied upon the debts 
of the company ; and all money or material collected upon 
such subscriptions, and all material or implements pur¬ 
chased with such money for the construction of the track, 
houses, depots, and rolling-stock of the company, will be 
exempt from execution, or other process or proceedings for 
the payment of the debts of the company, so long as such 
money, material, or implements are used or designed for 
the construction of such track, houses, depots, and rolling- 
stock. 3 

9. Property kept and used to extinguish fires exempt. All 
property used, or kept to be used, by any municipal corpo¬ 
ration or fire company, for the use of extinguishing fire, 
are exempt from execution and sale to satisfy any judg¬ 
ment or order arising upon contract or otherwise ; but the 
owner thereof may create valid liens thereon by bill of sale 
or mortgage. 4 

10. School property exempt. All property, real or personal, 
belonging to any board of education, is exempt from sale 
on execution, or other writ or order in the nature of an ex¬ 
ecution. 5 

11. Notary’s seal and register exempt. The official seal and 
register of a notary public are exempt from execution. 6 

12. Appraisal of exempted property. In all cases where it is 
necessary to ascertain the amount or value of personal 
property exempt under this chapter, it must be estimated 
and appraised by two disinterested householders of the 
county, to be selected by the officer holding the execution, 
and by him sworn to impartially make such appraisement. 7 

13. When subsequent paragraphs do not apply. The subse¬ 
quent paragraphs of this chapter do not extend to a claim 
for work and labor less than one hundred dollars, nor to im* 

i § 11723. 2 § 11722. 3 § 8792. * § 11724. 

6 § 4759. «§ 123. 7 § 11727. 


68 


CONSTABLES, MARSHALS, ETC. 


pair the lien of a mechanic, or other person, under any 
statute of this state, for materials furnished or labor per¬ 
formed in the erection of the dwelling-house thereon, nor 
for the payment of taxes due thereon. 1 

14. Right to exemption may be waived by mortgage. The 
owner of chattel property which is exempted by law from 
execution and sale for the payment of debts, is not divested 
of the right of disposing of it by pledge in security for the 
payment of his debts; and, in case of a pledge or chattel 
mortgage, the owner clearly waives the benefit of exemp¬ 
tion, so far as the incumbrance extends or is operative. 2 

15. Where, by the terms of a chattel mortgage, the mort¬ 
gagee has the right to the possession of the property at the 
maturity of his debt, and having reduced the debt to judg¬ 
ment, he sues out execution, upon which the mortgaged 
property is sold, the debtor sustains no injury in the right 
of possession of the property, which would support an ac¬ 
tion of trespass, even though the chattels thus mortgaged 
and sold belonged to the enumerated articles exempted by 
law from execution. 2 

16. Certain articles absolutely exempt; others by selection. 
There are certain enumerated articles which are absolutely 
exempted from execution, and which the officer is bound 
at his peril to notice and not take on execution, unless 
turned out by the debtor by a waiver of his right of exemp¬ 
tion ; but there are other articles, the exemption of which 
from execution depends on the selection to be made by the 
debtor. 2 See paragraphs 8 and 9 of Chapter 13. 

17. When selection, to be made. Where the exemption de¬ 
pends on the selection to be made by the debtor, the selec¬ 
tion should be made at the time of the levy, if the debtor 
be present, but, if not present, then it should be made, and 
notice given to the officer, within a reasonable time there¬ 
after, and before sale; and without such selection the right 
to the benefit of the exemption does not exist as to those 
articles which the statute authorizes the debtor to select. 3 But 
as to exemptions in lieu of homesteads, see next paragraph. 

18. Exemption in lieu of homestead. Husband and wife liv¬ 
ing together, a widower living with an unmarried daughter 
or minor son, every widow and every unmarried female 

i §§ 11728, 11729. 2 Frost v. ShsTv, 3 O. S. 270. 

3 Frost v. Shaw, 3 O. S. 270. When an officer levied upon a horse of 
the debtor, who claimed “the exemptions allowed bylaw,” find they 
fixed a time and place to meet and select and appraise the property 
to be exempted, at which the debtor purposely failed to attend, it was 
held that the debtor, by such failure, waived his right to select and 
hold exempt the horse so levied on. Butt v. Green. 29 O. S. 667. 

In an action against an officer for a seizure and sale, on execution, 
of chattels which are so exempted on such selection, the plaintiff 
must, in order to sustain the action, establish his right to the exemp¬ 
tion, bv proof of his selection of the property for the purposes con¬ 
templated by the statute. Frost v. Shaw, 3 O. S. 270. 


EXECUTION—EXEMPTIONS. 


69 


having in good faith the care, maintenance, and custody of 
any minor child or children of a deceased relative, residents 
of Ohio, and not the owner of a homestead, may, in lieu 
thereof, hold exempt from levy and sale real or personal 
property, to be selected by such person, his agent or attor¬ 
ney, at any time before sale, not exceeding five hundred 
dollars in value, in addition to the amount of chattel prop¬ 
erty otherwise by law exempted. 1 But as against debt for 
necessaries, only 90 per cent, of such earnings are exempt. 
No personal property exempt oji judgment for purchase 
price or part thereof. 

19. When the family is entitled to a homestead, and 
neither the husband nor the wife owns one, nor any other 
property, real or personal, except a single article of person¬ 
alty of less value than five hundred dollars, which belongs 
to the husband, and which is levied upon to satisfy his 
debt, the wife may demand and is entitled to have said ar¬ 
ticle exempted and set off in lieu of homestead. 2 

20. Husband and wife can not each at the same time hold 
the exemption provided by statute; and when the real es¬ 
tate, occupied as a family homestead, is owned either by the 
husband or wife, neither can hold exempt from execution 
the personal property allowed by paragraph 18, above, in 
lieu of a homestead. 3 

21. Personal property which becomes exempt from exe¬ 
cution only when selected by the judgment debtor, is, until 
such selection be made, subject to levy and sale. There is 
no presumption of law that a judgment debtor has selected 
or will claim to hold any particular item of personal prop¬ 
erty as exempt from execution, in lieu of a homestead, al¬ 
though he may not own any other property from which se¬ 
lections might be made. 4 


1 § 11738 (93 v. 318). The words “personal property” in this sec¬ 
tion include credits and moneys selected by the debtor. Credits and 
moneys selected by the debtor can not be taken and held under an 
order of attachment or garnishee process. Chilcote v. Conley, 36 O. 
S. 545 ; and see Conley v. Chilcote, 25 O. S. 320. See 50 O. S. 720. 

The right given by § 11738 to a debtor, who is the head of a family, 
and not the owner of a homestead, to hold exempt from levy and sale 
property therein mentioned, to be selected by him, “at anytime be¬ 
fore sale,” applies as well to property levied on by attachment as by 
execution; and an order for the sale of the attached property, made 
in the proceeding in attachment, does not pievent the debtor from 
exercising his right of selection after the making of such order of 
sale. Close v. Sinclair, 38 0 S. 530. 

Where property has been levied on by attachment, and, pending 
the suit, the debtor assigns all his property for the benefit of credit¬ 
ors, excepting only such as he may lawfully hold exempt from exe¬ 
cution, the right of the debtor to select the attached property as 
exempt from sale is not thereby waived. Ib. 

When land is sold in an action on a mortgage executed by husband 
and wife, neither of whom has a homestead, the wife, as against a 
judgment creditor who is a party, is entitled under this section to 
the exemption of a sum not exceeding five hundred dollars, out of 
the surplus after the satisfaction of the mortgage debt, although no 
demand is made until the sale is confirmed and the money in the 
hands of the officer for distribution. McConville v. Lee, 31 O. S. 447. 

2 Regan v. Zeeb. 28 (). S. 483. * Dwinell v. Edwards, 23 O. 8. 603. 

4 Carpenter v. Warner, 38 0. S. 416. 


70 


CONSTABLES, MARSHALS, ETC. 


22. If, at the time the debtor applies for the allowance to 
him of a fund or property in lieu of a homestead, he is the 
head of a family, but ceases to be so by living alone and 
separate from his children at the time the fund or property 
is to be applied, he will not be entitled to the same or the 
exemptions provided for the head of a family 1 . 

23. When no exemptions are allowed; trespassing animals. 
If any horse, mule, ass, neat cattle, hog, sheep, or goat, 
running at large, breaks into or enters any inclosure, other 
than inclosures of railroads, the owner of any such animal 
will be liable to the owner or occupant of such inclosure 
for all damages occasioned thereby; and the animal so 
breaking into or entering any inclosure will not be ex¬ 
empted from execution issued on a judgment rendered in 
any court, or before an officer having jurisdiction, lor dam¬ 
ages occasioned by such trespass. 2 

24. The members of an insolvent firm are not entitled to 
the statutory exemptions out of the partnership property 
after it has been seized in execution by partnership credit¬ 
ors, notwithstanding all the members join in demanding 
the exemptions. 3 

25. For all fines, costs, and damages assessed against any 
person, in consequence of the sale of intoxicating liquors, 
as provided in the chapter of the Revised Statutes relating 
to such sales, the real estate and personal property of such 
person, of every kind, without exception or exemption, ex¬ 
cept to heads of families and widows, as specified in § 11725; 
and such fines, costs, and damages will be a lien upon such 
real estate cntil paid. 4 

1 See Cooper v. Cooper, 24 O. S. 4S8. 

2 § 5932. 

3 Gaylord v. Imhoff, 26 O. S. 317. But where the members of a 
firm, acting in good faith, dissolve the partnership, and one member 
sells his interest in the partnership property to the other, the latter 
will not be deprived of the right to hold such property exempt from 
the payment of a debt thereafter asserted against him, on the ground 
that such debt was a partnership debt due at the time of dissolution ; 
nor will the fact that such partners knew the firm to be insolvent, at 
the time of such dissolution, make any difference. Mortley v. Flana¬ 
gan, 38 O. S. 401. 

4 § 6208. It is evident that some words have been omitted, or other 
mistake has been made by the legislature as to this section.—[E d.] 


EXECUTION—WHAT OFFICER MAY TAKE. 


71 


CHAPTER 13. 

EXECUTION, CONTINUED—WHAT PROPERTY OFFI¬ 
CER MAY TAKE ON EXECUTION; HOW, WHERE, 
ETC. 


1. Property generally is divided into two great classes , called 
real estate, or realty, and personal property, or personalty, 
also called chattels. 

2. Can not levy on realty. Generally speaking, magistrates 
have no jurisdiction in actions in which the title to real es¬ 
tate may in any way be drawn in question, except actions 
for trespass on real estate ; J and therefore constables and 
marshals have no right to levy an execution on real estate. 

3. Realty consists of what. What is real estate and what is 
personal property, therefore, becomes an important ques¬ 
tion, not in all cases easily answered. Lands and lots are 
realty. So are permanent structures thereon, such as facto¬ 
ries, houses, stables, and other usual out-houses, etc. So are 
all fixtures in and to buildings; that is, engines, boilers, ma¬ 
chinery, etc., so built into or fastened to any building as not 
to be removable without injury to the building, and appro¬ 
priated to the use or purpose of the building or land with 
which they are connected. 1 2 Temporary sheds or buildings 

1 See § 10232 (88 v. 262) ; and for fuller discussion of this than 
space will here permit, see Chap. 2, and works on Real Estate. 

2 “The law of fixtures is of a shifting character, and singularly in¬ 
capable of any accurate and exhaustive generalization. As it grew 
out of a long series of decisions, each of which was largely controlled 
by its own peculiar circumstances, the exceptions, qualifications, and 
limitations are so numerous as to impair very greatly the value of 
any general rule that might be deduced from the tenor of the judi¬ 
cial dicta on the subject. There are two principles, however, that 
may be considered as settled. One is, that where the parties have 
shown a positive intention to make an article a fix ure. it is a fixture; 
and where it is manifestly th- design of the parties having the con¬ 
trol of the subject, that an object suitable in character for a fixture, 
and appropriately placed, shall not be a fixture, it is vot a fixture. 
The other rule is, that, generally, an article to be a fixture, must be 
attached to the land.” Murfree on Sheriffs, $ 728 See same work, all 
of (’hap. 16; 2 Kent’s Com. 343; Williams on Real Property, etc. 

“In general, if a tenant make permanent improvements upon 
rented land, such as a dwelling-house or out-buildings, they become 
the property of the landlord and a part of the realty, and the tenant 
can not remove them, except by consen of his landlord. If, how¬ 
ever, a building, shop, or machine be erected by a tenant for the pur¬ 
pose of carrying on his trade, it is, in general, considered his chattel 


72 


CONSTABLES, MARSHALS, ETC. 


merely resting on the surface of the ground, and not on 
walls or pillars set into the ground, engines, boilers, gas 
fixtures, etc., placed by a tenant on rented land or in a 
rented building, and easily detachable therefrom without in¬ 
jury thereto, are general I personal property belonging to 
the tenant; but, if not so detachable, belong generally to 
the landlord. 1 Boors put into place, shelves fastened to the 
wall, materials used in enlarging or repairing a building, 
etc., belong to the building’s owner as a part thereof, no 
matter by whom put there. Fences, even though made of 
loose rails, are part of the realty, no matter by whom made 
or furnished, but not so the rails, posts, boards, wire, nails., 
etc., before they actually become a part of the fence. Spon¬ 
taneous growing products of land, such as trees, grasses, in¬ 
cluding timothy, clover, etc., while standing or uncut, are 
part of the realty, but, when cut, become timber, hay, etc., 
and are personal property. Fruit on the tree is part of the 
realty, but when plucked or fallen therefrom, or when pre¬ 
viously sold by the owner, is personal property. Gravel, 
minerals, petroleum, etc., while in position where placed 
by nature, are part of the land, but, when removed there¬ 
from, become personalty. 2 

4. But growing crops produced by annual planting, such 
as corn, rye, wheat, etc., are subject to levy and sale on ex¬ 
ecution issued by a magistrate, a even if a sheriff or other 

property, which he may remove, and which, therefore, maybe levied 
upon as his personal property. Thus, it has been held, that a house 
to carry on the business of manufacturing varnish; or vats to manu¬ 
facture soap; or sugar-kettles set in a furnace to make sugar; 
or a cider-mill and press; steam-engines or threshing-machines fixed 
to the land by means of a building; carding-machines and looms; 
kilns and sheds for making brick;—these and the like, when erected 
by a tenant at his own expense and for his own use, may be removed 
by him at or before the expiration of his lease; and, consequently, 
may be levied upon as his chattels.” Swan’s Treatise, Chap. 25, $ 6. 
See authorities above mentioned, and cases there cited. 

1 See preceding notes, and authorities there cited. The machinery 
of a manufactory that supplies the motive power, as the engine, 
boiler, and their usual attachments, as contradistinguished from that 
propelled by it, where permanently annexed to foundations resting 
upon the freehold, is generally held to be a fixture, though suscepti¬ 
ble of being removed without any material injury to the same or the 
freehold; and, whilst by the agreement of the parties, the property 
may be made to preserve the character of personalty, yet, when it is 
so attached, 'hat, but for the agreement, it would be a fixture, such 
agreement will be of no avail against a subsequent mortgagee of the 
realty without notice of it; nor will the filing of a mortgage upon it 
as chattel property, duly executed and delivered as such, of itself 
constitute such notice. Case Manufacturing Co. v. Garven, 45 O. S. 
289. 

As between an execution creditor and a mortgagee [or owner] of 
the realty, chandeliers and other gas fixtures are not fixtures, but 
personalty; so of a mantel-mirror held to the wall by iron clasps; but 
book-cases, which, if,removed, would also remove part of the wash¬ 
board around the floor, or a hat-rack built into the room, are part of 
the realty. Insurance Co. v. Kneislev, 13 Bull. 437. 

2 See same authorities cited in notes 1 and 2 on preceding page. 

3 2 Johns, 218; 17 Johns. 128 


EXECUTION—WHAT OFFICER MAY TAKE. 


73 


officer has previously levied on the real estate on which 
such crops are growing, if this latter officer did not specif¬ 
ically levy on the growing crop also. 1 If such crops are 
levied on and sold while still unripe, the purchaser may 
take care of and gather them, 2 or the levying officer may 
be directed by the judgment creditor to wait till the crop is 
ripe, and then sell them under a new order from the magis¬ 
trate. 3 

5. The general rule is that the officer, under a writ of exe¬ 
cution, may levy on whatever property he can find belong¬ 
ing to the execution debtor. But there are many excep¬ 
tions to this, as will be seen from the following paragraphs, 
as well as from the preceding chapter. 

6. Rights, etc., of landlord or tenant in crops, etc., protected. In 
all cases where any lands may have been let, reserving rent 
in kind, and when the crops or emblements growing or 
grown thereon, are levied on or attached by virtue of any 
execution, attachment, or other process, against the land¬ 
lord or tenant, the interest of such landlord or tenant 
against whom such process was not issued will not be af¬ 
fected thereby; but they may be sold, subject to the claim 
or interest of the landlord or tenant against whom such 
process did not issue. 4 

7. A tenant’s interest in land under a lease to him, unless 
the lease be renewable forever, is personalty, and may be 
levied on and sold under an execution issued by a magis¬ 
trate. 5 

8. Property exempt by selection liable till selected. Personal 
property which becomes exempt from execution only when 
selected by the judgment debtor is, until such selection be 
made, subject to levy and sale. 6 

9. No rule is better settled than this: That these statu¬ 
tory rights, in cases where the exemption depends upon se¬ 
lection or demand, as in cases like this, may be waived 
expressly in terms, or impliedly, by failing to assert the 
right or make the demand at the proper time, and the right 
can not be negotiated or transferred. The general right is 
statutory; the particular right is strictly personal, and in 
practice becomes simply a personal privilege, to be asserted 

i Cassilly v. Rhodes, 12 O. 88; Houts v. Showalter, 10 O. S. 124. 

a 2 Dana. 205; 7 Mass. 34. 8 2 Johns. 418. 

4 § 10433. A landlord leasing to a cropper for a year, reserving, as 

rent, a part of the grain, has a lien upon the growing crop, and the 
entire crop can not be removed by the tenant, or those acting under 
him, until the rent is provided for or satisfied. Hence, a constable 
holding an execution against such cropper would not be authorized 
to remove the cron until the landlord was satisfied. He could levy 
on the cropper’s interest and sell it, and the purchaser, after setting 
apart or providing for the landlord’s share, would take the residue. 
Case v. Hart, 11 O. 3G4 ; Swan’s Treatise, Chap. 16, §6. 

5 Lessee v. Hall, 3 O. 449. 

6 Carpenter v. Warner, 38 O. S. 416. 


74 


CONSTABLES, MARSHALS, ETC. 


or not at the will of the person in whose favor the right ex¬ 
ists. 1 See paragraphs 16 and 17, Chapter 12. 

10. After an execution is issued by a magistrate, any per¬ 
son owing the judgment debtor may pay his debt, or 
enough of it to satisfy the execution, to the officer holding 
the execution, and such officer’s receipt therefor will be a 
sufficient discharge of the amount so paid. 2 

11. Goods in the hands of a common carrier, pawnee, liv¬ 
eryman, etc., who does not own them, but who has a lien 
on them and therefore a right to hold them, can not be 
levied on for a debt of such lien-holder. 3 Nor can such 
such goods be levied on for a debt of the owner, without 
such lien-holder’s consent, unless such lien is first dis¬ 
charged. 4 

12. Goods vwrtgaged and by the terms of the mortgage left 
for a definite time with the mortgagor, who may in the 
meantime make some use of them, may be levied on and 
the mortgagor’s interest therein sold under an execution 
against him. If such property be replevied by the mort¬ 
gagee and sold, the proceeds would be applied first toward 
satisfying the mortgage, if valid, and next toward satisfying 
the execution. 5 But if such goods are put into the posses¬ 
sion of the mortgagee to remain till the debt they secure is 
paid, they are his till such payment, and can not be levied 
on under an execution against the mortgagor; and if such 
payment be not made when specified in the mortgage, they 
become absolutely the mortgagee’s, and may then, but no 
sooner, be levied on as his property. 6 All this applies to 
an attachment as well as an execution. 7 

13. Where the amount of such mortgages exceeds the 
entire value of the mortgaged property, only nominal dam¬ 
ages can be recovered against the officer for refusing to levy 

1 Conley v. Chilcote, 25 O. S. 324. 

2 Hallannn v. Crow, 15 O. S. 176; §§ 10490, 11780. 

3 6 Har. & Johns. 264. 4 4 Mason. 464; 4 Wend. 292. 

6 See Curd v. Wunder, 5 O. S. 93; Coe v. Bank, 10 O. S 412; Carty v. 
Fenstemaker, 14 O. S. 457; Coopers v. Wolf, 15 O. S. 523; Ashley v. 

Wright, 19 O. S. 291; Houk v. Condon, 40 O. S. 569. 

6 9 Wend. 258; 4 Cow. 491. 

7 The interest of the mortgagor in chattel property mortgaged, ot 
which he is in possession, after condition broken, may be attached, 
and the levy of the order of attachment and seizure of the property, 
by the officer charged with the execution of the order, creates a lien 
in favor of the attaching creditor upon the interest of such mort¬ 
gagor. Carty v. Fenstemaker, 14 O. S. 457. 

The subsequent recovery, by the mortgagee of the property, in an 
action of replevin, from the officer holding it under the attachment, 
does not divest such lien; and the attaching creditor may subject the 
surplus of the proceeds remaining after satisfaction of he mortgage, 
to the payment of the judgment recovered in the attachment suit, 
although, after the levy of the attachment, and before the c editor 
commenced proceedings to subjec such surplus, the mortgagor had 
executed an assignment to the morgagee of such surplus. Ib. 


EXECUTION—WIIAT OFFICER MAY TAKE, 75 


upon and sell the property on executions against the de¬ 
fendant. 1 

14. As to chattels sold conditionally. Personal property may 
be sold and delivered to the purchaser, to be paid for in in¬ 
stallments or otherwise at some future time, on condition, 
however, that it shall not become really his until paid for in 
full; and if the written instrument evidencing such sale is 
tiled with the proper township or county officer, as required 
by law in case of such instruments and of chattel mortgages, 
such a transaction is lawful, and the purchaser acquires no 
interest in such chattels that can be seized on execution 
till they are fully paid for, even if the execution creditor 
offers to pay the balance due thereon to the seller. 2 

15. As to goods obtained by false pretenses , etc. If one person 
(say A.) obtained goods from another person (say B.) by 
fraud, false pretenses or representations, B. may retake 
them from A., or from an officer who has seized them under 
an execution against A. But if A. had, after so obtaining 
them, sold them to a third person (say C. i, who knew 
nothing about the fraud or false representations, they could 
not be taken from C. under an execution against A., but 
they could be under one against C. But they could be 
taken from C. under an execution against B., if C. knew of 
this fraud or false representation In any case, however, 
the levy would be good, if B. did not interfere. 3 

16. Second levy on goods already seized. Generally, goods 
seized under an execution by one officer can not be taken 
from him under another execution by another officer, un¬ 
less the goods are held fraudulently under the first execu¬ 
tion. 4 But when a second execution against the same 
debtor is given to the same officer who holds the first one, 
he need not do more than indorse on the second execution 
as though it had been levied, on the day he received it. 5 & 
This is sometimes called a “ paper levy,” as in paragraph 2, 
Chapter 14. 

17. When levies may be made subject to prior levies. Any con¬ 
stable or other officer may, and is required upon demand of 

1 Clark v. Wolf, 15 O. S. 523. 

3 See Sage v. Sleutz, 23 O. S. 1 ; Sanders v. Keber, 28 O. S. 630; 
§§ 7880-7882, Giaque’s ed. It. S. As to chattel mortgages, see 
§§ 8560-8572. 

3 See 7 Taunt. 89; 2 Mason, 236; 6 Mete. 68; 1 Hill, 312; 12 Pick. 312; 13 

Wend. 570; 16 Conn. 81. 

* 10 Pet. 400; 5 Mass. 271; 8 B. & C. 132: lb. 660. 

& Where the property on which the officer levies a particular writ is 
in his possession under a former one, a second seizure need not, and 
in fact can not, be made; the seizure as to such subsequent writ is in 
law effected bv simply indorsing a levy upon it, and such levy will 
take effect from the receipt of the writ by the officer. Where the 
property is in his custody under the former writ, such custod> sup¬ 
ports the return of a levy made under the second writ; but if it is 
not, and no seizure is in fact made under the second writ, the latter 
one is no more effectual than the former one. Root v. Railroad, 45 O. 
S. 222-231. 


76 


CONSTABLES, MARSHALS, ETC. 


the execution creditor, to levy any execution in his hands 
upon personal property already levied upon, and in the 
custody of the sheriff or other officer, subject to prior 
levies; and such sheriff or other officer or person having 
charge of such property must afford such officer making 
any subsequent levy an opportunity to make such levy and 
take a schedule of the property, and such subsequent levy 
will create a lien upon such property or its proceeds, sub¬ 
ject to prior levies. But such officer so first levying retains 
possession of said personal property, and causes the same 
to be sold as in other cases; and the court issuing the writ 
first levied must determine all questions growing out of 
such levy or levies. 1 

18. On property in plaintiff 1 s own hands. A seller of mer¬ 
chandise, possession of which he holds by the contract un¬ 
til it be paid for, and which the purchaser does not pay for 
as agreed, may, after getting judgment for the contract 
price, levy execution on the merchandise as the property 
of the vendee. 2 

19. The execution debtor’s goods in the hands of a third person, 
who has no interest or property in such goods, must be 
seized by the officer, if he learns, or by reasonable diligence 
he could learn, that they belonged to the debtor, or he will 
be liable to the execution creditor for such neglect; and 
upon direction to seize, the officer is not excused by mere 
suspicion that the property designated is not that of the de¬ 
fendant; he must ascertain the facts and act accordingly. 3 

20. Seizure of goods not belonging to the debtor. On the other 
hand, if he believes that such goods belong to the execu¬ 
tion debtor, and he seizes them, wffien in fact they belong 
to another, the officer is liable as a trespasser to the owner 
of the goods. 3 

21. He is, therefore, at times compelled to choose which 
one of these two dangers he will incur. However, in such 
cases, he may demand indemnity from the creditor who in¬ 
sists on his seizing property of doubtful ownership. 3 

22. In such a case which came before our supreme court on 
the question of the right of such a third person to defend 
by force his property which a constable had levied on as 
the property of the execution creditor, it was stated by the 
court in effect that an officer in good faith seizing such 
property of an outsider, which the officer had reason to be¬ 
lieve belonged to the execution creditor, though in fact it 
did not, was doing his duty ; that such an officer “ is not in¬ 
fallible, nor does the law expect him to be so; it only de¬ 
mands that he shall be honest, and not wantonly trample 

1 § 10435. 2 Rhodes v. Mooney, 43 O. S. 421, 425. 

3 See Binsmore on Sheriffs, Constables, etc. ; Swan’s Treatise 
Chap. 25, § 5. 


EXECUTION—"WHAT OFFICER MAY TAKE. 


77 


on the rights of others.” And the court decided that, 
“ Whenever the question of property is so far doubtful that 
the creditor and officer may be supposed to act, and do in 
truth act, without wantonless, carelessness, or oppression, 
but in good faith, and on reasonable grounds for believing 
the property to be that of the debtor, the owner has no 
right to resist the execution or attachment by a breach of 
the peace.” 1 

23. Promissory notes, accounts, judgments, and such other 
like things as are called, in the language of the law, choses 
in action, meaning such property as can only be recovered 
or enforced by suit in law, can not be levied on under an 
execution. 2 

24. Death of defendant. If the defendant die after execu¬ 
tion is sued out and levied, the execution proceeds as if 
death had not taken place. If the defendant die after exe¬ 
cution sued out, and before levy made, the execution can 
not proceed. 3 

25. Entering dwellings, breaking doors, etc., to make a levy. The 
officer has exactly the same right to enter dwellings, break 
doors, etc., for the purpose of making a levy under a writ 
of execution that he has for the purpose of making an ar¬ 
rest in a civil case. See, as to this, Chapter 24. 

1 Faris v. State, 3 O. S. 159. 168. Whatever may formerly and else¬ 

where have been the necessity for resistance to an officer, in certain 
cases, there is, at this day, and in this country, no want of the peace¬ 
ful protection of property against a seizure, made in good faith by 
one clothed with public power, and subject to public responsibility. 
Nor is there any want of quiet, safe, and sure means to recover it 
when so taker.. Tb. 

3 See 23 Iowa, 104; Murfree on Sheriffs. $ 459, and cases there cited. 

3 Massie v. Long, 2 O. 287; Cartney v. Reed, 5 0. 221. 


78 


CONSTABLES, MARSHALS, ETC. 


CHAPTER 14. 


EXECUTION, CONTINUED—LEVY, WHAT CONSTI- 
TUTES A, AND WHAT NOT; CARE AND CUSTODY 
OF GOODS LEVIED ON; REDELIVERY BOND, ETC. 


1. What constitutes a levy ; effect of leaving seized goods with 
judgment debtor. In order to make a valid levy, the officer 
must actually take possession of the goods, either by taking 
hold of them with his hands, or by otherwise getting them 
into his possession to such an extent that they are in his 
power and control. But an actual seizure does not neces¬ 
sarily imply an actual touching of the goods, but merely such 
action as, in effect, puts them under the dominion of the law. 
A claim of dominion, with the power to exercise it, an intention 
being indicated to interfere with the goods, under pretense 
of right and authority derived from the execution, is a levy. 
The essence of the levy is, getting power over the property, 
such as will enable him to sell it at the proper time and 
place; and this he gets whenever he gets the property into 
his own hands or into the hands of another as his agent. 
In order to make a valid levy on goods and chattels, the 
officer must have them within his power and control, or at 
least within his view 7 ; and if he then makes a levy, it will 
be good if followed up afterward within a reasonable time, 
by his taking possession in such a manner as to apprise 
every body of the fact of its having been taken in execu¬ 
tion. Such a levy, to be valid against later levies, and 
against later purchase or mortgage, must be actual and with 
continued manual seizure by the officer, when seizure is 
practicable; or if the property is within view or power of 
control, by making such distinct, open, unequivocal asser¬ 
tion of dominion over it as the nature and situation of the 
property and circumstances will admit of, or as the judg¬ 
ment debtor may recognize and submit to, and constituting 
such an interference with the owner’s possession, either 
actual or constructive, as that the officer levying could be 
sued for trespass for, w T ere he not protected by the writ un¬ 
der w T hich he is acting. The making of an inventory, 
though often desirable, is not necessary to constitute a valid 
levy upon personal property. But the levy should be pub¬ 
lic, open, and unequivocal and nothing should be done by 
the officer to conceal the transaction. A secret levy on 


EXECUTIONS, LEVY, ETC. 79 

goods left on the premises in the possession of the defend¬ 
ant, and no act done to give notoriety to it, is bad. 1 

2. To illustrate: where an officer, under promise of in¬ 
demnity for his neglect, and to enable the debtor to raise 
money to satisfy the execution, by the prosecution of his 
business, merely indorses a paper levy on the execution in 
his hands, and allows the debtor to retain absolute posses¬ 
sion and control of the property, with power of use and 
sale in the usual course of business, such levy is void, and 
the goods and chattels are subject to seizure in execution in 
favor of other creditors. 2 

3. Where property easily removable (for example, a stal- 
.ion) is seized in execution, but left in the possession and 
use of the defendant, a delay for an unreasonable time to 
offer said property for sale, with the sanction and assent of 
the plaintiff, will have the effect of postponing such levy to 
one made upon a later execution. The question whether 
the delay, if any, was reasonable or unreasonable, depends 
on all the circumstances surrounding the parties and the 
property seized in execution. 3 If the officer go with the 
defendant into the field to levy on animals which are there, 
and, in view of them, make a note of the levy on the back 
of the execution, this will constitute a good levy. But if 
the officer, instead of going to the field, had, at the house 
of the defendant, or elsew r here, made a memorandum of a 
levy upon animals in the field, not within his view or un¬ 
der his control, and then left, without taking any further 
steps to complete the levy, these acts would not constitute 
a levy. If, however, the ievy w r as thus made by the assent 
of the judgment debtor, he could not afterward object to 
the regularity of the levy; but such assent would not pre¬ 
clude other judgment creditors from treating the levy as 
invalid. 4 

1 See Pugh v. Calloway, 10 O. S. 488 495; Minor v. Smith, 13 O S. 79, 
82, 83; Gibson v. Bank, 11 O. S. 311; Murphy v. Swadener, 33 O. S. 85, 
94. and authorities there cited. 

2 Murphy v. Swadener, 33 O. S. 85. 

3 Acton v. Knowles, 14 O S. 18. A sheriff afterward levying on 
the same property, the constable has, as against him, the right to the 
immediate possession, and may sustain an action without a demand 
for the redelivery of the property, and in such action, to mate out 
a case, calling on the sheriff to establish a better right to the prop¬ 
erty, the constable is not bound to produce in evidence the judgments 
upon which the executions levied were founded. That a prior levy 
was excessive does not, in itself, render it invalid as against a subse¬ 
quent levy upon the same property. See lb. 

4 Swan’s Treatise. Ch. 25, $8. and cases there cited. 

Where the officer went into the house of the judgment debtor, and 
told him that he came to levy on his goods, and laying his hands on 
a table, said, “ I take this table,’ then locked ui> the execution in the 
drawer of the table and took the key, and went away without any 
further 6teps to take the control of the property, it was held that there 
was no claim on any of the goods by such a levy; and that the officer 
had neither actual nor constructive possession after he left them. 
Ib 


80 


CONSTABLES, MARSHALS, ETC. 


4. An officer with an execution against a church corpora¬ 
tion, entered the church building on a week-day, while the 
sexton was in the bell-room ringing the bell, and there, in 
the presence of no one, but in view of the organ in the 
gallery, entered on the back of the execution a levy on the 
organ, and then retired without seeing the sexton, who was 
unaware of his presence, and who continued in control of 
the building and its contents, and in possession of the keys, 
as before; and before the disclosure of such levy either to 
the public or to the officers of the church, a chattel mort¬ 
gage of the organ was duly made, and by a bona Ji.de cred¬ 
itor of the church. The supreme court, in deciding the 
case, said that this levy was wanting in the requirements of 
openness, publicity, and reasonable assertion of dominion ; 
that, the organ being probably heavy and not being easy to 
remove, no manual possession was necessary; that it was in 
view of the officer, and sufficiently within his power of con¬ 
trol ; but that his proceedings were secret, and that he did 
not give his acts a reasonable notoriety ; and that therefore 
the mortgage was ahead of the levy as a lien on the organ. 
His delicacy for the feelings of the congregation about to 
assemble for worship, and which may have had something 
to do with his action, was commended by the court, but it 
also remarked that an officer must not allow his considera¬ 
tion for the feelings of debtors to endanger the rights of 
third persons. 1 

5. Where an actual and valid levy of an execution has 
been made upon personal property, the property so levied 
upon is, in contemplation of law, in the custody of the offi¬ 
cer, and if it is returned to, or left with, the judgment 
debtor, such levy is not for that reason alone void as against 
subsequent levies. Whether such levy is valid, or becomes 
fraudulent and void as against subsequent levies, is a ques¬ 
tion of fact depending on the character of the propert} r and 
all the surrounding circumstances of the case. 2 

6. Where a constable levies on property and leaves it in 
possession of the debtor (taking security for his own in¬ 
demnity), the possession of the debtor is to be regarded as 
the possession of the constable. 2 

7. When goods are so left by the officer in the possession 
of the judgment debtor, the officer so leaving them is re¬ 
sponsible for the goods to the judgment creditor. 3 When 
so left, with or without security, the officer may, after the 
expiration of the time limited for their re-delivery, retake 
them, wherever he can find them, if he can regain posses¬ 
sion without force or terror, or he may maintain an action 
for their recovery. 1 

8. Constable may take redelivery bond. Any constable hav- 

1 Minor v. Smith, 13 O. S. 79: lb. 84. 

2 Acton v. Knowles, 14 O. S. 18. 


EXECUTIONS, LEVY, ETC. 


81 


mg levied on. goods and chattels, which he permits the party 
against whom the execution issued to retain possession of, 
is authorized to take such security for his own indemnity 
as he may require, that such property shall be delivered at 
the time and place appointed for its sale. 1 

9. The officer should not leave the property in the posses¬ 
sion of the execution debtor unless he is willing to take the 
risk of paying to the execution creditor the value of such 
property or the amount of the execution. The bond pro¬ 
vided for above is to reimburse him, if he so has to pay. 3 
Read paragraphs 2 to 7, above. 

10-15. Form of redelivery bond. 

Know all men by these presents, that we, V. W. and X. 
Y., of Springfield township, in the county of Hamilton, in 
the State of Ohio, are bound unto A. B., constable of the 
township of Springfield, in the county aforesaid, in the 

sum of -- dollars, for the payment of which we hereby 

jointly and severally bind ourselves. 

Bated this - day of -, 19—. 

The condition of this obligation is such, that, whereas, 
the above named A. B., as constable of the township and 
county aforesaid, by virtue of an execution now in his 
hands, duly issued in the action of E. E. against G. H., by 
C. D., a justice of the peace in and for the township and 
county aforesaid, on the- day of -■, a. d. 19—. com¬ 

manding him to make out of the goods and chattels of said 

G. H. the sum of - dollars debt, and also- dollars 

costs of suit, has levied upon the following described prop¬ 
erty of said G. H., to wit: [describe the property , substantially 
as in the inventory , or as the facts may require ] ; and which said 
property the said A. B., constable, left in the possession of 
G. H. [or state in whose possession .], at the request of the above 
obligors, at the time of the execution of this writing oblig¬ 
atory. 

Now, if the said G. H. shall redeliver said property to the 
said A. B., constable, or any other officer holding an exe¬ 
cution or order for the sale of the same in said action, at 
the time and place appointed by said A. B., or sffid other 
officer, according to law, then this obligation shall be void ; 
otherwise it shall remain in full force. 

[Witnesses, if any, sign here. V. W. 

They are not necessary.] X. Y. 

16. Insufficient and excessive levy. In making a levy, the 
officer must exercise a prudent, reasonable, and cautious 

1 § 10432. Where the constable has taken security for hi3 own in¬ 
demnity, and leaves the property levied upon in the possession of the 
debtor, the debtor’s possession is to be I'egarded as the possession of 
constable, and as against a sheriff who afterward levies upon the 
property, the constable has the right to the immediate possession, 
and may maintain an action therefor, without a demand for the re- 
delivery of the property. Pugh v. Calloway, 10 O. S. 488. 

2 See Swan’s Treatise, Ch. 25, § 11. 










82 


CONSTABLES, MARSHALS, ETC. 


discretion, and take into his possession an amount of prop¬ 
erty sufficient, when sold, in all human probability, and 
making due allowance for the sacrifices incident to forced 
sales, to realize a sum that will pay off the execution. If 
he fails to do this, he will be liable to the plaintiff for hav¬ 
ing made an insufficient levy. He may, out of abundant 
caution, or for other good reason, make an additional levy 
at any time before sale; but this rule must be construed 
reasonably; it does not authorize oppression in office, which 
may be committed by an excessive levy. He must use dis¬ 
cretion, the presumptions of law being in his favor. If, 
having it within his power to secure a debt, from timidity, 
carelessness, or a worse motive, he makes an insufficient 
levy, he is liable for the deficiency ; if from willfulness, 
malice, indifference to the rights of others, pride of place, 
or other unworthy motive, he makes an excessive levy, he 
is liable to the defendant or other party interested. It is 
the officer’s duty to levy on enough property to satisfy his 
process, and he can, in doubtful cases, only rely on his 
judgment, and should always give the plaintiff the benefit 
of any doubt he may have as to the real value of the prop¬ 
erty. A levy can not be said to be excessive, unless the 
difference between the value of the property and the 
amount of the debt is manifest and glaring. The same 
principles govern, in this respect, attachments and execu¬ 
tions. 1 

1 See Murfree on Sheriffs. §§ 524-7, and eases there cited. 

What is an insufficient, and what an excessive levy, are questions of 
fact dependent upon the circumstances of each particular case. The 
following rules may aid: The value of the property as appraised by 
the appraisers will not protect the officer from an insufficient levy. 
The true standard is the value in current money at the time of levy; 
the officer will not be liable for depreciation bet ween time of levy and 
sale, if when the levy was made, it was undoubtedly adequate. If 
the officer is guilty of no fraud or neglect, the inadequacy of the price 
brought at the sale will not of itself be enough to charge him with 
an inadequate levy, and if there is great uncertainty at the time of 
levy as to the value of the property seized, and it luriis out later that 
the value was greatly in excess of the debt sued for, it does not follow 
that the levy was excessive. Ib., § 525. 

In a Michigan case (50 Mich. 355) properly worth $800 was seized un¬ 
der an attachment for $68.00; the officer refused to Set apart to the 
defendant her exemptions; the attachment suit failed, and the prop¬ 
erty was wholly lost to the defendant. In a suit against the officer, 
the court (Cooley, J.) said: “The levy itself was grossly excessive' 
and if the plaintiff had been allowed all the exemptions she claimed 
there would have been ample property to secure the pretended debt.’ 
It can not be tolerated that such a seizure should go unrebuked. The 
officer is, or should be. a minister of justice, not of oppression; and 
he should execute every writ put into his hands in such a manner as 
to do as little mischief to the debtor as possible. To seize and hold 
the whole of a debtor’s property, so as to preclude the debtor not 
only from engaging in his customary business, but even from keep¬ 
ing house, when the enforcement of his process does not at all re¬ 
quire it. is a proceeding which we can not think the defendant him¬ 
self would have failed to censure, if it had corpe to his personal 
knowledge. And even if the seizure had been justifiable, the cir¬ 
cumstances were such as to demand from the officer prompt action 



EXECUTIONS, LEVY, ETC. 


83 


17. When levy satisfies the debt. A levy on enough property 
to satisfy the debt, if it can be taken from the possession 
of the defendant, is a satisfaction of the debt. After such 
a levy has been made, if the officer wastes the goods, or 
fails to return the execution; or neglects to sell them ; or 
misapplies the money arising from their sale; or the goods, 
by fault of the officer, or of the person with whom he has 
left them, have not been applied to the payment of the 
judgment, the judgment creditor must look to the officer 
for payment. He can not sue out a fresh execution ; the 
judgment, as between him and the judgment debtor, is sat¬ 
isfied. If, however, goods not sufficient to satisfy the exe¬ 
cution are .seized, the judgment creditor can, while the levy 
remains in force, look to the officer only for their value or 
proceeds, and the execution, to that extent only, is satisfied. 
But if the debtor never lost possession of the goods by the 
levy, or if the officer restored the property to the debtor, or 
if the levy was abandoned at the debtor’s request, or for 
his benefit, or was overreached by a prior lien, or if the prop¬ 
erty is claimed by a third person and adjudged to him after 
trial, then it is not a discharge of the debt. 1 

18. As to goods taken from officer by legal process. An officer, 
from whose legal custody goods have been seized, may re¬ 
possess himself of them, even when in the hands of another 
officer who has afterward attached or levied upon them un¬ 
der a valid process. 2 Formerly, if goods so levied upon 
were replevied from the officer, and a replevin bond given 
therefor, such officer could not repossess himself of them, 
and they were no longer the judgment debtor’s property, 
but belonged to the one who gave the replevin bond. 2 But 
the defendant in a replevin suit may now give a replevin 
bond, and repossess himself of the property, and abide the 
judgment declaring who is actually entitled to the posses^ 
sion of the goods. 3 

19. When goods are replevied from the officer, he is not 
required to litigate the matter, but should notify the judg¬ 
ment creditor or his attorney as to such replevin. 2 

20. In what order levied. The officer must levy executions 
in the order in which they are delivered to him. 4 

in setting off the exemptions, for every day’s delay was an unnecessary 

^rTa Missouri case (52 Mo. 518) an officer levied an execution for 
$109 on a steamboat worth $40,000, and detained it several days: and it 
turned out that the execution creditor had no interest in the boat. 
Damages of $2,500 were adjudged against the officer. 

There must be a gross abuse of discretion by the officer, to render 
him liable for an excessive levy, indicating an intent to oppress the 
debtor. Swan’s Treatise, Ch. 15, $ 8. 

1 Murfree on Sheriffs, $ 529; Swan s Treatise, Ch. 15, £ 9, and cases 
there cited. 

2 See Swan’s Treatise, Ch. 15, § 9. 3 See § 10465, as am. 88 v. 275. 

* Where a judgment creditor placed an execution in the hands of 

the sheriff, stating that he did not know where there was property to 


34 


CONSTABLES, MARSHALS, ETC. 


21. When two or more executions are issued upon different 
judgments against the same debtor, the one first levied will 
be the first ien, unless they were delivered to the same offi¬ 
cer on the same day, when neither one will have prefer¬ 
ence ; and the officer must levy them on the same prop¬ 
erty, and the money made must be apportioned ratably to 
the different judgments. 1 

22. Formerly, when one officer had levied an execution 
on property, another officer could not levy another execu¬ 
tion on the same property. 1 But see paragraph 17 of Chap¬ 
ter 13. 

be levied on, but then another execution would be put into his hands* 
with directions where to levy, and requiring the sheriff to levy the 
first execution first; and afterward another judgment creditor, who, 
by expenditure of trouble, and employing a detective, had ascer¬ 
tained where there was propety of the debtor, placed his execution 
in the sheriff’s hands, but learning of the former execution, refused 
to disclose the whereabouts of the property unless he could preserve 
the benefit of his labor by having his execution levied first, and 
thereupon tho sheriff acceded and levied such execution first the 
sheriff is liable to the earlier execution creditor, tne property being 
insufficient to satisfy both. Weber v. King, 7 Bull. 148. 

1 See Swan’s Treatise, Ch. 15, $ 10. 


EXECUTION—LIABILITIES OF OFFICERS. 


85 


CHAPTER 15. 

EXECUTION CONTINUED—LIABILITIES AND REM¬ 
EDIES OF OFFICER AS TO EXECUTION ISSUED 
TO HIM, ETC. 


1. When officer is liable on an execution in his hands. A con¬ 
stable is liable to the party in whose favor an execution is¬ 
sued to him for the amount thereof, in the following cases: 
First. Where he suffers thirty days to elapse without mak¬ 
ing a true return of the execution to the justice, and pay¬ 
ing to him, or to the party entitled, the money collected 
thereon by him. Second. Where he willfully and carelessly 
omits to levy on property within thirty days, or, if the de¬ 
fendant be liable to be imprisoned, then to arrest and com¬ 
mit him to the jail of the county within thirty days. 1 

2. As to searching for goods to levy on. The mere fact that 
the debtor had property subject to levy will not, in general, 
be sufficient to make a constable liable for neglect. Other 
facts and circumstances must be proved, from which it may 
appear expressly or presumptively, that if the officer had 
made any reasonable inquiries, or used slight diligence, he 
could have collected the money from .the property of the 
execution debtor. 2 

3. If a judgment debtor have property liable to seizure 
on the execution, openly kept by him, so that, by going to 
his residence, the constable could levy upon it, and the 
constable knows the defendant and where he resides, or 
knows the defendant and makes no inquiry to ascertain his 
residence, and the constable makes no levy, and shows no 
exertion on his part to make a levy, he has willfully and 
carelessly omitted to make a levy. Mere inquiry of the 
execution debtor for goods is not a search. 3 

4. The rule of diligence has been stated as follows: “On 
receipt of the execution, in the absence of specific instruc¬ 
tions, the officer must proceed with reasonable celerity to 
seize the property of the debtor, if he knows, or by reason¬ 
able efforts can ascertain, that such debtor has property in 
his bailiwick liable to execution. The officer must do this 
as soon after the process comes into his hands as the nature 
of the case will admit. If he fails to execute the process 

1 § 10422. 2 Swan’s Treatise, Chap. 15, § 5. 

3 Swan’s Treatise, Chap. 25, § 9; 1 J. J. Marsh. 550; 5 Wend. 309. 


86 


CONSTABLES, MARSHALS, ETC* 


within an apparently reasonable time, the burden is upon 
him to show, by averment and proof, that the delay was 
not in fact unreasonable. Failing in this, he must respond 
in damages to the party injured by his negligence.” 1 * 

5. The officer is not responsible for the loss of good hap¬ 
pening by fire, theft, embezzlement, natural decay, or the 
like. He must act in good faith, and is responsible for his 
own gross negligence and fraud, and the gross negligence 
and fraud of his servants and agents with whom he may 
leave the goods. The common care which men of ordinary 
prudence exercise in keeping and preserving property of 
the like kind, he is bound to exercise, and no more; and if, 
notwithstanding such care, the goods deteriorate in value, 
or decay, or perish, the loss must be borne by the judgment 
debtor.* 

6. Excuse of constable for failure to execute writ; other writ to 
issue. In cases where the constable makes it appear to the 
satisfaction of the justice that he has been deprived of an 
opportunity of levying an execution within the time pre¬ 
scribed by law, or otherwise prevented from making the 
whole of the money therein required to be made, and makes 
return to that effect to the justice who issued it, such jus¬ 
tice is authorized and required to issue further process of 
execution for the amount or balance remaining unsatisfied. 
This new writ must be served and returned, in all respects, 
as other executions. 3 

7. Pay for keeping livestock levied on. When any cattle or 

other live stock are taken in execution, it is the duty of the 
justice who issued the execution, or other justice charged 
with the duty of collecting the judgment, whereon such 
execution issued, to allow the constable, for keeping the 
same, a reasonable compensation, to be taxed and collected 
as other costs in the suit. 4 • 

8. Remedies of officer sued for seizure, etc., of wrong property. 
Whenever any officer, having an execution issued to him 
upon any judgment, shall, in good faith, have levied such 
execution upon any property, not subject thereto, and shall 
have sold said property, and applied the proceeds in satis- 

1 Murfree on Sheriffs, $565, citing Elmore v. Hill, 51 Wis. 365. In 
that case, a sheriff was held liable who waited four days on a cor¬ 
poration which had promised to arrange to pay the execution in his 
hands, but which, within that time, made an assignment of property 
which that officer could have found and seized. 

If it be shown that the debtor was in possession of property not 
exempt from execution, and that the officer knew it, he will, in gen¬ 
eral, be held responsible, and the burden falls upon him to show 
that the property was not owned by the defendant, or was otherwise 
not subject to execution, or that he did exert himself so far as not ta 
be chargeable with willful carelessness in omitting to. make a levy. 
Swan’s Treatise, Chap. 15, $ 5. 

* Story on Bail. 130; Swan’s Treatise, Chap. 15, $ 9. 

3 § 10434. * § 10429. 


EXECUTION—LIABILITIES OF OFFICERS. 


8 ? 


faction, or part satisfaction, of said judgment, and a recovery 
of the value of said property shall have been had against 
him in any court for so doing, upon having paid said value, 
said officer, on motion before the court having control of 
said judgment (it being shown to the court that due notice 
of said motion has been given to the defendant named in 
said execution), may have the satisfaction of said judgment 
or decree, so made from the sale of such property, vacated; 
and execution must issue for the same, for the use of said 
officer against whom such recovery has been so had, the 
same as if such levy and sale had not been made. 1 

9. The statute provides in effect that when an officer is 
sued for the recovery of personal property taken by him on 
execution, or forthe proceeds of such property sold by him, 
he may show to the court the writ or process under which 
he acted, with his affidavit that the property was taken or 
sold by him under said process; and the court may then 
make an order for the safe-keeing, or for the payment, or 
deposit in court, or delivery of the said property or pro¬ 
ceeds to such person as it may direct, and also order the 
person in whose favor the writ was issued to appear in a 
reasonable time, and maintain or relinquish his claim to 
said property or proceeds. If such person, being duly 
served with a copy of said order, fails to appear, the court 
may declare him barred of all claim to said property or 
proceeds. If he appears, he must be allowed to substitute 
himself as defendant in the suit in place of the officer 
who will then be discharged from all liability to either 
plaintiff or defendant in said suit, in respect to the said 
property or proceeds, as soon as he complies with the 
order of the court for the payment, deposit, or delivery 
thereof. 2 

10. The statute also provides that, in an action against 
an officer for the recovery of property taken under an exe¬ 
cution, or attachment, the court may, upon application of 
the defendant, or of the party in whose favor the execution 
or attachment issued, permit the latter to be substituted 
as the defendant in such action, security for costs having 
been given ; or the court may order such substitution to be 
made on application of the officer. 3 

11-15. The form of the affidavit mentioned above may be as 
follows: 

State of Ohio,-County, ss: 

A. B., being duly sworn, says that he, as constable of 

-township, -county, Ohio, in the suit of E. F. v. G. 

H., before C. D., a justice of the peace of said township, 
levied on (or, levied on and sold, if so) the following prop¬ 
erty (describe it), under and by virtue of the writ of execu- 

i § 11706. 2 §§ 11265, 11266. 3 § 11267. 


88 


CONSTABLES, MARSHALS, ETC. 


tion herewith exhibited to the court, in which (or, to the 
justice before whom) the said constable has been sued 
in consequence of said levy (or, levy and sale, if so). 

A. B. 

Sworn to and subscribed before me, on this-day of 

-, 19—. C. G., J. P.-County, Ohio. 

16. Other pertinent provisions. See also paragraphs 19- 
22 of Chapter 13; paragraphs 26-28 of Chapter 5; and 
other references there found. 




EXECUTION—SALE OF GOODS, ETC. 


89 


CHAPTER 16. 

EXECUTION CONTINUED-SALE OF GOODS LEVIED 
ON; INVENTORY OF GOODS SOLD, ETC. 


1. The notice of sale. All property taken in execution by 
the constable must be advertised for sale, at four of the 
most public places within the township where such prop¬ 
erty was seized, at least ten days before the time appointed 
for such sale. 1 

2. Time and place of sale. Such sale must be held between 
the hours of ten o’clock a. m. and four o’clock p. m., at the 
house, or on the premises where such property was taken, 
or at one of the most public places within the township, 
and at least ten days after posting the notices thereof. 1 It 
can not be on Sunday, and should generally not be on an 
election day, or holiday, or at such other time as public at¬ 
tention is absorbed by other matters. 2 

3-8. Form of notice or advertisement of constable’s sale — 
Constable’s Sale. 

By virtue of an execution to me directed, I will sell, oss 
Saturday, the 11th day of April, 10—, at ten o’clock a. m., 
at the dwelling-house of G. H., in Berlin township, Holmes 
county, Ohio, the following goods and chattels, to wit: 
[Describe them, substantially as in the inventory, or in 
other definite way, mentioning each item, if not too 
numerous; but if too numerous, mention some of the more 
important items, and designate the remainder, in general 
terms; and change the above mentioned time and place 
to suit the facts. 1 

Taken in execution as the property of the said G. H. at 
the suit of E. F., April 1, 10—. 

A. B., Constable. 

0. Conduct of the sale, generally — Bids, when binding, etc. 
It is essential to such a sale that it be at auction, to the 
highest bidder, and for casli.2 The officer is entitled to a 
reasonable discretion in receiving bids, and need not ac¬ 
cept that of an irresponsible person, whom he knows to be 
such, or whom he does not know at all. A stranger may 
be considered irresponsible if, after having been called 
upon, he does not prove himself to be responsible. The 
highest bidder means the highest bidder that will pay. If 
i § 10427. 2 Murfree on Sheriffs. § 993. 



90 CONSTABLES, MARSHALS, ETC. 

he will not pay the money, the officer should again sell the 
property. 1 

10. The officer is not permitted to advertise certain prop¬ 
erty for sale, and on the day of sale, by agreement with 
the debtor, to substitute other property. 2 

11. The property, if it consists of different articles, can 
not, as a general rule, be sold in bulk, but must be sold 
in detail, after opportunity has been given to bidders to 
inspect the specific articles offered for sale. This does not, 
however, prevent the sale of several things of the same 
kind in lots or by n^easurement or weight; for instance, 
corn or other grains may be sold at so much per shock or 
per bushel, hay or iron by the ton, chickens by the dozen, 
etc. The aim of the officer should be to sell in such de¬ 
tail, or in such lots or measurement, and quantities, or 
suitable parcels, or even in bulk, as will produce the most 
money from the property sold. He should sell nothing that 
is out of sight, but should go to such articles to be sold, as 
are too bulky to bring to the place where most of the 
things are sold, for instance, to a hay-stack in a distant 
field. 3 

12. If property levied on in execution and sold is sus¬ 
ceptible of division, and the constable sells more than is 
necessary to pay the claim and costs, he will be responsible 
to the debtor for the property thus sold unnecessarily. 4 

13. A constable can lawfully receive and cry at his official 
sales only such bids as are offered and received at the time 
and place of sale. 5 

14. The constable may receive bids in writing, or through 
any other medium, provided they come to him as bids at 
the time of the sale. He must not bid for himself directly 
or indirectly. Nor can he lawfully, directly or indirectly, 
bid as agent for another at his official sale. 6 

15. A bid is a mere offer to purchase, and may be with¬ 
drawn at any moment before it is accepted, and the prop¬ 
erty struck off to the bidder. But as soon as his bid, if 

1 Murfree on Sheriffs. $ 999. 2 State v. Fuller, 14 O. 545 . 

3 See Murfree on sheriffs, §§ 994-5. 4 Sparling v. Todd, 27 O S 525 

5 Sparling v. Todd, 27 O. S 521. 

P.,as constable, seized property of T. in execution, and advertised 
it for sale; on his way to the place of sale he met with S., who gave 
P. a written offer of ten dollars for the property levied on; about one 
o’clock in the afternoon, at the place of sale, no person being present 
but P., the constable, he announced the proposition of S. as a bid 
cried it as a bid, and then declared the property sold to S. On the 
ensuing day S. paid P ten dollars, and P. delivered the property to 
S., who took possession thereof. Held , that this was not a lawful bid 
and that P.. in delivering, and S., in taking possession of the propl 
erty of T., were wrong doers, and became liable to T. in an action for 
the value of the property, lb. 

«lb. 526. 


EXECUTION—SALE OF GOODS, ETC. 91 

not withdrawn in time, is accepted, he has made a con¬ 
tract, which is binding on both parties. 1 

16. If a bid is made which must result in an utter sacri¬ 
fice of the property (such as a bid one dollar for a horse 
worth fifty), the officer is not bound to strike it off, but 
may withdraw the article from the sale, and again advertise 
and sell it. And it has been held that, under such circum¬ 
stances, the officer may return the article as unsold for want 
of buyers, even if the plaintiff instructs him otherwise. 
Whether he could or could not thus return the article as 
unsold, lie can not, probably, withhold property from sale, 
to preserve it from utter sacrifice, more than once; and it is 
clear that he will make himself liable, if, to favor the exe¬ 
cution debtor, or to prevent a satisfaction of the judgment, 
he refuses to strike off property under the pretense that a bid 
is a sacrifice of the property. 2 

17. If the purchaser refuses to pay for an article which 
has been struck off to him, the officer may return on his 
execution that the article was not sold for want of buyers; 
for he is not bound to make himself liable, as he would be, 
by returning an actual sale, and trusting to a recovery, by 
an action against the purchaser. If the purchaser does 
not pay, the officer may sell the property again, and the 
first purchaser will be liable for any difference between his 
bid and the amount for which the article finally sold. If, 
however, instead of so doing, the officer deliver the prop¬ 
erty without payment, he is liable for the amount bid, al¬ 
though he does not receive it. He should not part with 
the goods until the money is paid. 2 

18. The officer does not warrant any thing connected with the 
sale. If he acts in good faith, and his conduct is free from 
imputations of fraud, neither he nor his sureties are re¬ 
sponsible to the purchaser at such sale. 3 

19. Justice and constable not to purchase; penalty. Neither 
the justice of the peace who issued the execution, nor 


1 Mnrfree on Sheriffs, $$ 999. 1003; Swan’s Treatise, Chap. 25, $ 16. 

2 Swan’s Treatise, chap. 25, $ 16, verbatim, and cases there cited. See 
also, more amply, Murfree on Sheriffs, $$996-1008. 

3 Murfree on Sheriffs, $ 1010. ...... _ . 

The officer does not warrant the title of the execution debtor. But 

he must act in good faith: therefore, if an officer sell property which 
he knows at the time does not belong to the judgment debtor, and 
savs nothing about it at the sale, he is responsible to the purchaser, 
who may recover back the purchase-money, although paid over to 
the execution creditor, for, in such case, the officer has been guilty 
of a fraud. Swan’s Treatise, Chap. 25. $16. 

It is in no degree incumbent upon the deiendant to disclose defects 
of his property, seized by the sheriff and offered for sate, such as un¬ 
soundness of animals or other latent defects; still less is it the duty 
of the sheriff to make such disclosure if he is aware of the defect. 
It is his province to sell the property of the defendant, such as it iSr 
and as his sale is the sale of the law, caveat emptor is the rule which 
governs it. lb., $ 1005. 


92 


CONSTABLES, MARSHALS, ETC. 


the constable holding it can purchase, either directly or in¬ 
directly, any property sold on such execution; and any such 
justice or constable so doing is liable to forfeit and pay, for 
every such offense, any sum not exceeding one hundred 
dollars nor less than five dollars; to be recovered by civil 
action, in the name of the State of Ohio, before any court 
having jurisdiction thereof, for the use of the township 
where such offense was committed; and be also liable to 
the action of the party injured thereby. 1 

20. The inventory. When a constable levies on and sells 
any goods and chattels, he must make out and annex to 
his return to the execution, in virtue of which such sale 
was made, a true inventory of all such property, and of 
each article thereof, and the price at which it was sold. 2 
See paragraph 28 below, as to penalty for not so doing. 

21. Schedule to he returned of goods not sold. Where a con¬ 
stable has levied on any goods and chattels, which remain 
unsold for want of bidders, or other just cause, he must re¬ 
turn, with the execution, a schedule of all such goods and 
chattels. 3 


22-26. Schedule A.—Being an inventory of the goods and 
chattels levied on, sold, remaining unsold for want of bidders, etc., 
by virtue of the writ of execution hereto annexed — 


ARTICLES LEVIED UPON. 

NAMES OP PURCHASERS. 

PRICE. 



Dolls. 

Cts. 

One bay horse 

John Smith . 

60 

5 

25 

50 

One book case . 

Henry Brown. 

Samuel Jones. 

Twenty chickens. 

4 

00 

One bu jgy.. — 

One washing machine.. 
(Etc. as mat/ be) . 

Notsold for wantofbidders. 
Not sold for wantof bidders. 
(Etc., as may be) . 





Total amount realized 


69 

75 




A. B., Constable. 

Opposite the name of any article sold, write, in the sec¬ 
ond column, the name of the purchaser, and in the next 
column, the amount sold for; opposite the name of any 
article remaining unsold, write, in the same column, the 
words, “ not sold for want of bidders ,” as shown above. 

28. Penalty against constable for not making. The statute 
provides that for each and every neglect to return a true 
and accurate schedule or inventory of property sold, or re¬ 
maining unsold for want of bidders, or other just cause, 
and if sold, the price at which the same was sold, each and 
every constable guilty of such neglect shall forfeit and pav, 
on conviction thereof, any sum not exceeding one hundred 
dollars, to be recovered by action in the name of the State 

1 § 10428. 2 § 10430. 3 § 10431. 




















EXECUTION—SALE OF GOODS, ETC. 


93 


of Ohio, for the use of the party injured thereby, to be 
prosecuted before any court having cognizance thereof. 1 
29. Male of unsold goods. When goods remain unsold as 
specified in paragraph 21 above, the justice must, unless 
otherwise directed by the party for whom such execution 
issued, or his agent, immediately thereafter, issue an order 
commanding any constable to whom said order is directed 
or delivered, to expose such property to sale. This sale, 
and the proceedings thereon, must be the same as if such 
property had been sold on the original execution. 2 


1 § 10430. 


2 § 10431. 


94 


CONSTABLES, MARSHALS, ETC. 


CHAPTER 17. 

RETURN OF EXECUTIONS. 


1. What is no part of the return. It has been already stated 
in paragraphs 6 and 7 of Chapter 5, that the officer must 
state on each writ he receives, the time when he received it, 
and that this statement is no part of the return, though 
often so placed, in the forms found in books on such sub' 
jects, and in printed blanks, and therefore in actual prac¬ 
tice, as though it were a part of the return. See paragraph 
3, below. 

2. The constable’s items of fees are also often placed as 
though they were a part of the return; but they are not. 
See paragraph 3, below, and paragraphs 3fi-38 of Chap¬ 
ter 5. 

3. The duty of the ministerial officer is to ascertain from 
his process and the law which authorizes it, what is the 
precise duty required of him, and how it is to be per¬ 
formed ; then to perform that duty in the exact manner 
prescribed by law, and then to state in his return precisely 
what he has done, having reference to the terms of the 
law, and reciting every detail specified in it. 1 If he goes 
outside of this, and states things not required of him, that 
part of his return is of no avail. 2 

4. When return must he made. Executions and orders of 
sale must be returned within thirty days from the time 
they were received. 3 After that time the" constable can do 
nothing whatever under the writ, except to make return 
thereof; and for not returning it within that time, he is 

1 Murfree on Sheriffs, g 850. 

2 Where, as a matter of fact, personal property is for the first time 
seized by an officer and taken into his custody under a writ of execu¬ 
tion, tne return of the officer that he had levied the same upon cer¬ 
tain property, subject to a former attachment, does not preclude the 
execution creditor from showing that, from an omission of the officer 
to take the property into his custody, no such attachment had in fact 
been made. Root v. Railroad Co., 45 O. S. 222. 

The sheriff can not alter a party’s rights by a statement in his re¬ 
turn favorable to another The return is conclusive on parties and 

E riviesas to such facts only as it is his duty to state, and these em- 
race only a pertinent history of what he did in carrying out the re¬ 
quirements of the writ. Outside matters incorporated by him in it 
constitute no part of the return and are not evidence, it is no part 
of Ixis duty to determine the existence of liens. Id. 231-2. 

3 § 10417. See par. l‘. Chap. 15. 


RETURN OF EXECUTIONS 


35 


liable to the execution creditor, 1 except as stated in para¬ 
graph 1 of Chapter 15. 

5. If the judgment upon which he has an execution is 
docketed in the court of common pleas, or is appealed or 
stayed, he must return the execution, stating upon it the 
fact that it has been so docketed, appealed, or stayed. 2 

6. Failure to make true return, or to pay over, in time . A 
constable is liable to the plaintiff in execution for the 
amount due thereon, in all cases where he does not make a 
true return within thirty days, and also in all cages where 
he does not, within that time, pay over the money col¬ 
lected ; and it is not necessary, in order to make him so 
liable, that both duties should be neglected. 3 


FORMS OF RETURN TO EXECUTION. 

7-10. When the money is made — 

By virtue of this writ, I levied on the property of the 
within named G. H., described in Schedule A, hereto at¬ 
tached, and advertised and sold said property [or, if part 
only was sold, say, advertised said property and sold thereof] 
to the persons and for the prices set forth in said schedule. 


Made by said sale.$265.50 

Costs retained.$- 

Costs on the judgment.$- 

Costs indorsed on this writ.$- 

Increase costs items elsew'here hereon).$- 

Total costs.. 15.40 


Balance.$250.10 

A. B., Constable. 

11-14. When part of the money is made — 

By virtue of this writ, I levied on the property of the 
within named G. H., described in Schedule A, hereto at¬ 


tached. 

Duly advertised the same and sold as follows: 

One cow, to B. D., at.$ 8.00 

One buggv to O. G, at.•. 15.00 

The remainder of said property, being probably sufficient 
to discharge said execution, remains on hand for want of 
bidders, there not being time enough again to advertise. 
[Or say, if so: The said G. H. has no other goods and chattels 
whereof I can make any more of the amount of this writ.] 

Money made by sale...$23.00 

Deduct fees. 0.85 


Balance, paid over to-, 

-, 18 . 


.$16.15 

A. B., Constable. 


1 8 10422. See more fully, par. 1, Chap. 15. 
s § 3337 . 3 Evans v. House, 26 O. S. 48S. 

















96 


CONSTABLES, MARSHALS, ETC. 


15-18. When paid in money by execution debtor — 

April 11, 19—. Money made by cash from the within 

named G. H., being...$265.50 

[State costs, and deduct, as in paragraphs 7-10, above ]... -— 

Balance...$- 

Fees: A. B., Constable. 

19-22. When property offeree, out no bidders — 

By virtue of this writ, I levied on the property of the 
within named G. H., set forth in the schedule hereto an¬ 
nexed, marked A, of probably sufficient value to satisfy 
this writ [or, if so, say, the said G. H. having no other per¬ 
sonal property whereof to make any part of the amount of 
this writ]. 

I advertised and offered said property for sale on the- 

day of-, 18—, but it failed to sell, and remains in my 

hands for want of bidders, there not being enough time 
again to advertise. A. B., Constable. 

23-26. When no goods are found — 

No goods whereon to levy. [Or: The within named G. 
H. has no goods or chattels whereof to make any part of the 
amount of this writ.] A. B., Constable. 

27-29. Same, when execution is against administrator, etc. — 

No personal property in the hands of the within named 
B. D. [the administrator], which were of the said C. D., at his 
decease, to be admininisted on, whereof to make any part 
of the amount of this writ. A. B., Constable. 

30-33. When property claimed by and restored to third person, 
and no other property found — 

Levied on, and 1 advertised the goods and chattels of the 
within named G. H., described in Schedule A, hereto an¬ 
nexed, to be sold on the-day of -, 19—, and accord¬ 
ing to a written order of C. D., justice of the peace of - 

township, hereto appended, * I restored said property to L. 
M., claimant. No other personal property of the said G. H. 
found whereon to levy. A. B., Constable. 

34-37. Same, when part of seized property is so restored, and 
the balance sold — 

[Proceed as in form last above to the *, then add:] I restored 
the following described property to L. M., claimant, to wit: 
[here describe the property delivered]. Sold the remainder of 
said property, as in said schedule in detail set forth. 


Made by sale.<$- 

[State costs, etc., and deduct, as in paragraphs 7-10].. 

Balance.$- 


A. B., Constable. 









RETURN OF EXECUTIONS. 97 

38. When fresh levy is made after restoring' property to 
third person — 

[Follow the form in paragraphs 30-33, above, to the*, 
then add : ] - -, 19—, served on the personal prop¬ 

erty of the said G. H. ? as described in schedule marked B, 
liereto attached. [State proceedings on this levy as in 
previous forms, according to the facts.] 

A. B., Constable. 

39-42. When property levied on is replevied from con¬ 
stable — 

Levied on, and, April 9, 19—, advertised the personal 
property of the within named G. H., described in Schedule 
A, hereto appended, to be sold on the 20th day of April, 
19—; and, 

April 12th, 19—, the said property was taken from my 
possession by E. D., sheriff [or, constable, etc., according to 
the facts], by virtue of a writ of replevin, a copy of which 
is hereto annexed, marked B, issued by C. C., justice of the 
peace of -township, -county, at the suit of X. Y. 

[No other goods or chattels of the said G. H. found 
whereon to levy. Or other conclusion to the return, as the 
facts may be.] A. B., Constable. 

43-45. Same, briefer form — 

By virtue of this writ, April 9, 19—, I levied upon the 
personal property of the within named G. H., described in 
the Schedule A, hereunto annexed. * 

April 13, 18—. The said personal property was seized 
and replevied at the suit of X. Y., as per copy of summons 
in replevin and replevin bond herewith returned and made 
part of this return. A. B , Constable. 

46. In such cases, the constable must return a copy of 
the summons and of the replevin bond. 

47-51. When stayed by injunction , appeal, etc .— 

[ Proceed as in the foregoing form to the *, and then. add. 

All further proceedings stayed by injunction, a copy of 
which is hereto annexed, marked B, issuing from the clerk’s 
office of [here mention the court} A. B., Constable. 

Make a similar return in case the execution be stopped 
by an appeal, or a stay, put in by the judgment creditor. 

52-55. When goods sold on an order of sale 1 — 

By virtue of this order, I advertised and sold the prop¬ 
erty therein described to the persons and for the prices fol¬ 
lowing : 

1 An order of sale is an exectrion issued where a constable has al¬ 
ready levied on property, which, for some cause, remains unsold. 
As the property is already in the hands of the officer, this w rit merely 
commands him to expose it to sale tor, in Latin, venditioni exponas)■ 
No levy need therefore be stated. See par. 21, Chap. 16. 






98 


CONSTABLES, MARSHALS, ETC. 


ARTICLES SOLD. 

TO WHOM SOLD. 

PRICE. 

One cow. 

M. 0. 

$ 8.00 

15.00 

One buerev . 

p. Q. 


Made thereby. 

$23.00 



A. B., Constable. 

56-62. When a leasehold is sold — 


On April 10, 19—, by virtue hereof, I levied bn a certain 
interest of the defendant, G. H., in the remainder of a 
certain term of years yet unexpired, in the following 
described premises, to wit: [Here describe the premises as 
in some former deed, or otherwise, accurately .] 

April 13, 19—, I duly advertised said interest to be sold 

on the--day of-, 19—, at-, and at said time and 

place, between the hours of ten a. m. and four p. m., I put 
up to public sale and struck off and sold to one L. W., said 

interest and estate, for-dollars and- cents, he being 

the highest and best bidder therefor. 

Made by sale.$- 

[State costs, etc., and deduct, as heretofore directed) .. 



A. B., Constable. 


Form of assignment of the estate so sold, which constable must 
ake — 

Whereas, on the - day of -, a. d. 19—, one E. F. 

obtained a judgment against G. H., before C. D., a justice 

of the peace in and for- township,- county, Ohio, 

in the sum of [the amount of the execution ]; and whereas, on 

the - day of -, 18—, an execution was delivered to 

the undersigned, of that date, by said justice, directed to 
the undersigned, then and always 6ince being a constable 
of said county, commanding him to collect out of the per¬ 
sonal property of the said G. H. the sum of [the amount of 
the execution) ; and whereas, by virtue of said execution, the 

undersigned, on the - day of -, 19—, levied upon 

[here follow the return as to the description of the premises and the 
proceeding of the sale, substituting the words 11 the undersigned ” 
wherever the word “ J” occurs in the return) ; all of which said 
doings, under said execution, were duly certified, and, with 
said writ, returned to said justice, as will more fully appear 
by reference to the docket entries and files of said justice: 

Now, therefore, the undersigned, as constable as afore¬ 
said, and by virtue of the judgment, execution, levy, and 
sale aforesaid, and in consideration of said sum of -dol¬ 
lars and-cents, paid by said L. W., doth hereby sell, 






















RETURN OF EXECUTIONS. 


99 


assign, and convey to said L. W., his legal representatives 
and assigns, the said interest and estate of the said G. H. in 
the residue of the said term yet to come, and unexpired, in 
said premises. 

In withess whereof, the undersigned, as constable, hath 
hereunto set his hand, this - day of -, a. d. 19 — . 

A. B., Constable of-county, Ohio. 

Signed and acknowledged in our presence. 

E. B. 

M. E. 

Form of acknowledgment of the foregoing — 

The State of Ohio,-county, ss. 

On this-day of --, 19—, before me, C. D., a justice 

of the peace in and for said county, personally appeared the 
above [or, within] named A. B., constable as aforesaid, and 
acknowledged the signing of the foregoing conveyance to 
be his voluntary act and deed. 

Witness my hand, 1 this-day of -, a. d. 19— . 

C. D., Justice of the Peace. 


* See pa*. 4, Chap. 3. 



100 


CONSTABLES, MARSHALS, ETC. 


CHAPTER 18. 


TRIAL OF RIGHT OF PROPERTY LEVIED ON OR 
ATTACHED, WHEN CLAIMED BY A THIRD PER¬ 
SON ; INDEMNIFYING BOND. 

1. When, under an execution or attachment, the officer 
must run the risk of being liable either to the plaintiff for 
not seizing property lawfully subject thereto under such 
writ, or to some third person for seizing property not be¬ 
longing to the defendant (see paragraphs 19-21 of Chapter 
13), he should require the indemnifying bond prescribed in 
paragraph 21 of Chapter 13, and paragraph 5 of this chapter, 
and then seize, and, if it be not replevied from him, sell the 
property. Such third person may then sue the purchaser 
and replevy the property, or he may sue the officer for dam¬ 
ages, or he may, before such sale, have a trial to test the 
ownership of such property; at least so far as concerns the 
constable, as follows: 

2. Notice of lime and 'place of trial. When a constable lev¬ 
ies on or attaches property claimed by any person or per¬ 
sons other than the party against whom the execution or 
attachment issued, the claimant or claimants must give 
three days’ notice in writing, to the plaintiff or his agent 
(or if not found within the county, then such notiee must 
be served by leaving a copy thereof at his usual place of 
abode in such county) of the time and place of the trial of 
the right to such property. 1 

3. The trial. This trial must be had before some justice 
of the county, at least one day before the time set for the 
sale of the property. 1 

4. If judgment be for claimant. If, on the trial, the justice 
is satisfied that the property, or any part of it, belongs to 
the claimant or claimants, he must render judgment for 
the costs against the party in whose favor such execution 
or attachment issued, and issue execution therefor, and 
give a written order to the constable who levied on, or 
who may be charged with the duty of selling such prop¬ 
erty, directing him to restore it, or so much of it as may 
have been found to belong to such claimant or claimants. 1 

i§ 10371. 

2 § 10372. 

Such restoration will not prevent such claimant from suing the con¬ 
stable for damages for such seizure and detention. Abbey v. Searles, 
4 O. S. 598. 


TRIAL OF RIGHT OF PROPERTY, ETC. 


101 


5. If indemnified for so doing, the constable may disobey 
such order of the justice, and may sell the property, if 
he does so sell, instead of restoring the property, he will be 
liable to the suit of the claimant, in which suit he may con¬ 
test the title of the latter. 1 

6. If against claimant. If the claimant or claimants fail to 
establish his or their right to such property, and to every 
part of it, the justice must render judgment against him 
or them for the costs that have accrued on account of such 
trial, and issue execution therefor, and the constable will 
not, in that case, be liable to the claimant or claimants for 
the property so taken. 2 

7-12. Form of indemnifying bond. 

Know all men by these presents, that we, E. F., M. R., 
and N. T., of Fredericksburg, in the county of Wayne, in 
the State of Ohio, are bound unto A. JB., constable of the 
township of Salt Creek, in the county aforesaid, in the 
sum of two hundred dollars, for the payment of which we 
hereby jointly and severally bind ourselves. 

-Uauea tins - day of -, 19—. 

The condition of this obligation is such, that, whereas, the 
above named A. B., as constable of the township and county 
aforesaid, by virtue of a writ of execution [or, order of 
attachment] now in his hands, duly issued in the action of 
E. F. against G. H., by C. D., a justice of the peace in and 

for the township and county aforesaid, on the - day of 

-, 19—, commanding him to collect out of the goods and 

chattels of said G. H. the sum of-dollars debt, and also 

-dollars costs of suit, has seized the following goods and 

chattels as the property of the said G. H., to wit: [describe 
the property de nitely, as, for instance, in the inventory ]; 
which property is claimed by one II. K., and said claimant 
H. K. procured such proceedings to be duly had under the 
statute relating to the trial of the right of property levied 
on and attached, that said constable was duly ordered by 
W. S., a justice of the peace of said township, to restore 
said property to said claimant; and, whereas, said E. F., 
notwithstanding the premises, has requested said constable 
to proceed and sell said property, under said execution, as 
the property of the said G. H., which said constable has 
agreed to do upon being indemnified. 

Now, the condition of this obligation is such, that if the 
said E. F., M. R., and N. T. shall, in all respects, save harm¬ 
less and keep indemnified the said A. B. from all losses, 
costs, attorney and counsel fees, damages and expenses 

1 Armstrong v. Harvey, 10 O. S. 527; lb. 533 Swan’s Theatise, Oh. 
25, § 13. 

2 § 10373. 

The main object of this law and trial is for the protection of the 
constable, and not to ascertain the real rights of the parties, who may 
contest their rights further. 11 O. S. 527, 532. 








102 


CONSTABLES, MARSHALS, ETC. 


which he may sustain, pay, or be put to for seizing or sell¬ 
ing said goods and chattels, or any of them, or for paying 
to the said E. F. the money arising from the sale of said 
goods and chattels, or for any other act or matter relating 
thereto, or in the proper execution of said writ, then this 
obligation shall be void, otherwise it shall remain in full 
force. E. F., 

[Witnesses, if any, sign here.] M. R., 

[None are necessary.] N. T. 

13. The officer may recover , on such a bond , the costs, attor¬ 
neys’ fees, and expenses in defending an action brought 
against him for acting as required under the bond, as well 
as the damages adjudged against him in said action, although 
the principal obligor alone has notice of the commencement 
and pendency of the action against the officer. 1 * 3 

14. A verbal jromise by a judgment creditor to indemnify 
an officer holding an execution against loss or damage from 
the seizure and sale of property claimed by the debtor to be 
exempt from execution, is not void as against public policy.* 

1 Finckh v. Evers. 25 O. S. 82. 

If the creditor had due aotice of the action, and an opportunity to 
defend against it, the judgment recovered against the officer is con¬ 
clusive evidence against the obligors of the amount of damages in 
in the action on the indemnity bond. Miller v. Rhodes, 20 (). S. 494. 

Where a bond was executed to a constable, by a principle obligor 
and surety, reciting that the constable had levied an execution on 
properly claimed by a third person, and containing this condition: 
“ Now, if the said constable is kept harmless, and all damages paid 
by the said bounden, in case said execution be levied on wrong 
property, and the same sold, then these obligations are void:” Held, 
that the obligors were bound to indemnify the constable, although 
the property was replevied from him by the claimant, the owner, 
before a sale of the property had been made. Finckh v. Evers, 25 O. 
S. 82. 

3 Mays v. Joseph, 34 O. S. 22, 


ATTACHMENT OF DEFENDANT’S PROPERTY. 103 


CHAPTER 19. 

ATTACHMENT OF DEFENDANT’S PROPERTY. 


1. Definitions, explanations , etc. Attachment, as a legal 
proceeding, is of two kinds: First, against the person, as 
for instance in the cases of disobedient witnesses or jurors, 
already considered in Chapter 10; and second, against the 
property of the defendant, whereby it may be seized and 
kept in the custody of the law, out of the defendant’s 
power to secrete it," or remove it or dispose of it, and so 
that it may be on hand to apply to the payment of a judg¬ 
ment not yet rendered. In this latter respect, and in others, 
it differs from an execution, which is a seizure of defend¬ 
ant’s goods to satisfy a judgment already rendered. 

2. The writ issued by the magistrate to the constable or 
other officer in such proceedings directing the seizure of 
property is called the order of attachment. 

3. An attachment proceeding is not of itself a suit or 
action, but is a part of a common civil action or suit for 
money, and is resorted to, in such suits, as a part thereof, 
to help the plaintiff by seizing the defendant’s property at 
once and before trial in certain cases permitted by law. 1 

4. To authorize an attachment proceeding, either nan- 
residence or fraud of the defendant must exist, and must be 
set up by the plaintiff', or by his agent or attorney, by affi¬ 
davit, much as in the case of arrest before judgment in 
Chapter 25. However, there is this difference in the require¬ 
ments as to the affidavits, that in case of an order of arrest, 
the affidavit must state what grounds there are to justify a 
belief that fraud exists, or the proceedings are illegal, 
while in the case of an attachment, if fraud is positively 
stated to exist, no such grounds need be set forth in the 
affidavit; but if the affiant states that he believes it exists, 
he must state his grounds for his belief. 2 

5. But with this affidavit, or its sufficiency, the constable 
has nothing to do. That is the magistrate^ business. If 
the order issued to the constable or marshal is regular on 
its face, he must obey its commands, or be liable on his 
bond for his disobedience. See paragraph 26, Chapter 5. 

1 See Harrison v. King, 9 O. S. 388; Siebert v. Switzer, 35 O. S. 661. 

* See Dunlevy v. Schwartz, 17 O. S. 640; Garner v. White, 23 O. S. 
292; also 9 0.S. 388. above; Emmett v. Yeigh, 12 O. S. 355. 


104 


CONSTABLES, MARSHALS, ETC. 


6. What property may he attached. The statute pro¬ 
vides that the plaintiff shall have an order of attachment 
against any property of the defendant, in a civil action 
before a justice of the peace for the recovery of money, 
before or after the commencement of the action, when the 
affidavit required therefor is filed in the justice’s office. 1 

7. What and whose property is exempt from attachment. The 
statute further provides that said affidavit must show that 
the property sought to be attached is not exempt from exe¬ 
cution ; and, if the personal earnings of the defendant are 
sought to be attached, that the defendant is not the head 
or support of a family, or that such earnings are not for 
services rendered within three months before the com¬ 
mencement of the action, or, that being earned within that 
time, they amount to more than one hundred and fifty 
dollars, and that only the excess over that amount is sought 
to be attached, unless the claim is for work or necessaries. 2 

' 8. It also provides that no such attachment shall issue 
against the personal earnings of any defendant for services 
rendered by such defendant within three months before 
the commencemet of the action or the issuing of the at¬ 
tachment, unless the defendant is not the head or support 
of a family, nor of a dependent widoweu mother, or unless 
the amount of such earnings exceeds one hundred and fifty 
dollars, and then only as to the excess over that amount. 3 

9. Also that no proceedings in attachment shall be had 
to garnishee the salary or wages of the employe of a rail¬ 
road company, by reason of his non-residence, except be¬ 
fore a justice in, and on account of his being a non-resi¬ 
dent of, the county in which his liability was incurred. 3 

10. When it is desired to attach intangible property of 
the defendant, such as wages, debts, credits, rights of action, 

1 § 10253. 

- § 10253 (93 v. 319). The affidavits must also show the nature of 
the plaintiff’s claim, that it is just, the amount the affiant believes the 
plaintiff ought to recover, and also the existence of some one, or more, 
of the following particulars: 1. That the defendant, or one of several 
defendants, is a corporation, having no officer upon whom a summons 
can be served, or place of doing business in the county, oris a non¬ 
resident of the county; or, 2 Has absconded with intent to defraud 
his creditors; or. 3. lias left the county of his residence to avoid the 
service of a summons; or, 4. So concealed himself that a summons 
can not be served upon him; or, 5. Is about to remove his property, 
or a part thereof, out of the county, with intent to defraud his cred¬ 
itors; or, 6. Ts about to convert his property, or part thereof, into 
money, for the purpose of placing it beyond the reach of his cred¬ 
itors; or, 7. Has property, or rights of action, which he conceals; or, 
8 . Has assigned, removed, or disposed of, or is about to assign, re¬ 
move, or dispose of his property, or a part thereof, with intent to de¬ 
fraud his creditors; or, 9. Fraudulently or criminally contracted the 
debt, or incurred the obligation, tor which suit is about to be, or has 
been, brought. § 10253 (9b ». 319). 

s § 10253 (93 v. 319). 


ATTACHMENT OF DEFENDANT’S PROPERTY. 105 

or such other things as can not be touched or seized with 
the hands, due to the defendant from a third person, such 
property is reached by a separate branch of the same attach¬ 
ment proceeding, called garnishment. The writ issued to 
such third person is called notice to garnishee, such third per¬ 
son being called the garnishee. 

11. Tangible property (such, for instance, as a horse, 
merchandise, or other property capable of being taken hold 
of or touched with the hands) belonging to the defendant, 
but being in the possession of a third person, and w'hicli 
the officer can not get hold of, or can not “ come at,” as the 
statute expresses it, is reached by being garnisheed in the 
same way as debts, credits, rights of action, and other in¬ 
tangible property. See paragraphs 26 and 39, below. 

12. But if the officer can get possession of such tangible 
property, it is his duty to do so, under the writ of attach¬ 
ment, to the same extent, and subject to the same risks as 
in the case of executions, as set forth in paragraphs 19-22 
of Chapter 13. See further as to garnishment in paragraphs 
26-37, below. 

13. The plaintiff may either begin his suit and have sum¬ 
mons issued and returned, before beginning (in the same 
suit) his attachment proceedings, or he may so proceed as 
to have the summons and the order of attachment, and 
also the notice to garnishee, all issue at the same time. 1 

14. How order served when accompanied with summons. If 
the order of attachment is made to accompany the sum¬ 
mons, a copy of this order, and the summons, must be 
served upon the defendant in the usual manner for the 
service of a summons, if it can be done within the 
county. 2 

15. The order of attachment must be addressed and de¬ 
livered to any constable of the proper township, and must 
require him to attach the goods, chattels, stocks, or inter¬ 
ests in stocks, rights, credits, moneys, and effects of the de¬ 
fendant in his county, not exempt by law from being ap¬ 
plied to the payment of the plaintiffs claim, or so much 
thereof as will satisfy the plaintiff’s claim (which claim 
must be stated in the order as in the affidavits, and the 
probable costs of the action, not exceeding fifty dollars. 1 

16. The return dayoi the order of attachment, when issued 
at the commencement of the action, must be the same aa 
that of the summons; when issued afterward, it must be 
executed and returned forthwith. 3 


i §§ 10255, 10253. 

a § 10262. See Chap. 6. 

3 § 10256. 


106 


CONSTA3LES, MARSHALS, ETC. 


17-22. Form of order of attachment— 

The State of Ohio, Knox county, ss. 

E. F., Plaintiff, j Before C. D., justice of the peace in 

G. H., Defendant. J and for 8aid count ^ 

To any constable of College township : 

You are commanded to attach and safely keep the goods, 
chattels, stocks, or interests in stocks, rights, credits, 
moneys, and effects of the said defendant in your said 
county, not exempt by law from being applied to the pay¬ 
ment of the claim of said plaintiff, or so much thereof as 

will satisfy his claim for - dollars, and to cover costs 

that have accrued and may accrue on this writ, - 

dollars. 

You will make due return of this order, and of your 

doings by virtue of the same, on -day of -, a. d. 

18— [or, forthwith]. 

Witness my hand, this - day of -, a. d. 19— . 

C. D., Justice of the Peace. 

23. Form of certificate on copy of order of attachment — 

I certify the within and above to be a true copy of the 
original order of attachment [and of the original summons 
and of indorsements thereon, if summons is served at same 
time on same sheet of paper]. 

A. B., Constable. 

24. Return to order of attachment. See paragraphs 90-98, 
below. 

25. Indorsement of items of fees on such order. The con¬ 
stable must comply with the law 1 as to indorsing the items 
of his fees, which he may do as follows : 


constable’s fees, items. 

Service and return of summons, 1 person.$ 25 

1 copy, 25 cents. 25 

Mileage, 5 miles. 45 

Service and return of order of attachment, 1 person. 40 

1 copy, 25 cents. 25 

Mileage, 5 miles. 45 

Summoning and swearing appraisers. 1.00 

Advertising property sold. 25 

Keeping live stock. 3.00 

[Insert other items , if any] . 

Service and return of notice to garnishee. 40 

l copy, 25 cents..... 25 

Mileage, 3 miles. 30 


Total.$ 7.25 


26. Proceedings against garnishee. When the plaintiff, his 
* See par. 36, Chap. 6. 
















ATTACHMENT OF DEFENDANT’S PROPERTY. 107 


agent or attorney, makes oath in writing that he has good 
reason to believe, and does believe, that any person, part¬ 
nership, or corporation named in the affidavit, has property 
of the defendant in his possession, describing it, if the 
officer can not get possession of such property, he must 
leave with such garnishee a copy of the order of attach¬ 
ment, with a written notice to the effect that he must ap¬ 
pear before the justice, at the return of the order of attach¬ 
ment, and answer, under oath concerning such property, 
etc., such questions as may then and there be asked him. 1 

27-30. Form of notice to garnishee — 

State of Ohio, Knox County, ss. 

^ 1 Before C. D., justice of the peace in 

G. H„ Defendant. J and for 8ai<l count y- 
To any constable of College township: 

You are commanded to notify John Garnishee to appear 
before me, the said justice of the peace, at my office in 

said township, on the -day of -, a. d. 18—, at - 

‘o’clock, — m., to answer all questions put to him touching 
the property of every description and credits of the said 
defendant in his possession, or under his control, and truly 
disclose the amount owing by him to the said defendant, 
whether the same be due or not; or any stock, bonds, or 
interest held by or for the benefit of said defendant. And 

of this writ make due service and return, on the-day 

of-, a. d. 19—. 

Given under my hand, this - day of -, A. D. 13— . 

C. D., Justice of the Peace. 

31. How garnishee served. If the garnishee is a person, 
the copy of the order and notice mentioned in paragraph 
26 above must be served upon him personally, or left at his 
usual place of residence; if a partnership is garnisheed by 
its company name, they must be left at its usual place of 
doing business, or be served personally on a member of 
said partnership; and if a corporation, they must be left 
with the president or other principal officer, or the secre¬ 
tary, cashier, or managing agent thereof; and if such cor¬ 
poration is a railroad company, they may be left with any 
regular ticket or freight agent thereof in the county. 2 

32. Effect of garnishment on public officer. The service of 
process of garnishment upon the sheriff, coroner, clerk, 
constable, master commissioner, marshal of a municipal 
corporation, or other officer having in his possession any 
money, claim, or other property of the defendant, or in 
which the defendant has an interest, binds the same from the 
time of such service, and is a legal excuse to such officers, to 
the extent of the demand of the plaintiff, for not paying 
such money or delivering such claim or property to the de- 

1 §§ 10265, 102G7, 10268. 6500 (89 v. 47). 

2 § 10266. Whitman v. Keith, 18 O. S. 134. 



108 


CONSTABLES, MARSHALS, ETC. 


fendant, as by law, or the terms of the process in his hands, 
he would otherwise be bound to do. 1 

33. Form of certificate on notice to garnishee — 

I certify the within to be a true copy of the original or¬ 
der of attachment and notice to garnishee. 

A. B., Constable. 

34. A garnishee may pay the money owing to the defendant 
by him, to the constable having the order of attachment, or 
into the court; and if he so pays, he will be discharged 
from liability to the defendant, for any money so paid, 
not exceeding the plaintiff’s claim, with some exceptions, 
if the claim is for necessaries. 2 Of course, this by implica¬ 
tion authorizes the constable to receive such money, for 
which he is responsible on his bond. 

35. Recapitulation. The officer must bear in mind that if 
the garnishee delivers to the officer the property described 
in the affidavit, no turther proceedings are had against him. 
If the officer can not “come at” such property, he must 
leave with the garnishee a certified copy of the order of at¬ 
tachment and notice to garnishee. It is on this copy only 
that the above certificate must be signed. 

36. Return as to notice to garnishee. See paragraphs 95, 96, 
below. 

37. There are numerous other provisions as to the gar¬ 
nishee, but they do not concern the constable, unless he be 
ordered to serve on him writs such as are usual in other 
actions, and therefore need no description here. 

38. How the attachment is executed. The officer holding the 
order of attachment must go to the place where the de¬ 
fendant’s property may be found, and there, in the pres¬ 
ence of two credible persons, declare that by virtue of 
said order, he attaches said property at the suit of the 
plaintiff. 3 

39. When the property can be come at, he must take it 
into his custody, and hold it subject to the order of the 
justice. 4 

40. Inventory and appraisement. The officer, with two 
householders of the county, who must be first sworn by 
the officer, must make a true inventory and appraisement 
of all property attached, which must be signed by the officer 
and said householders and returned with the order. 3 

41. Form of oath to be administered by the constable to the ap¬ 
praisers. The appraisers having each raised his right hand, 
the constable will say to them: 

1 § 11829. 2 § 102G9. s § 10257. 

4 § 10257. Where personal property has been seized by an officer, 
under writs of attachment, he alone can maintain an action to recover 
damages for its subsequent conversion by a stranger. He has the 
exclusive right of property. Schaeffer v. Marienthal, 17 O. S. 183, 
189, 190. 


ATTACHMENT OF DEFENDANT’S PROPERTY. 109 


42. “ You do, each of you, solemnly swear that you will 

make a true inventory and appraisement of all the property 
seized by me in the case of E. F. against G. H., now pend¬ 
ing before C. D., justice of the peace in and for-town¬ 
ship, -county, Ohio; and this you do as you will an¬ 

swer to God.” 

43. And to this, each of the appraisers must give assent. 

44-46. Form of inventory — 

Inventory and apppraisement of property attached by the 
undersigned, A. B., constable of College township, Knox 
county, Ohio, at the suit of E. F. against G. H., made this 

-day oi-, 19—, upon actual view T , by said constable, 

and I. L. and Jo M., two householders of said county (said 
householders having been first duly sworn by said con¬ 
stable, as the law directs), to wit. 


ARTICLES ATTACHED. 

Appraised Value. 

$ 

cts. 

(Mention the articles) . 






1 



A. B., Constable. I. L., 

J. M., 

Householders above named. 


47. To constitute an attachment of goods, the officer must 
have actual possession and custody of them, at least to the 
extent as on a seizure under an execution. 1 And his pos¬ 
session, or that of his agent, must be continuous. 1 He 
must take as complete possession as possible of bulky ar¬ 
ticles. Taking possession of the contents of a factory, get¬ 
ting the key thereto and locking it and keeping the key, 
would be possession of the articles inside, but not of articles 
in sheds outside. 1 

48. After goods have been attached, they are under the 
custody of the law; and if they are lost otherwise than 
through the officer's negligence, the loss is the defendant’s. 
The officer in charge of attached property is bound to use 
at least ordinary care and watchfulness for its keeping, and 
if it is lost or injured by his negligence, he is liable to the 
party injured. 2 

49. Removal of goods is important only as being evi¬ 
dence of possession, but this is important enough to make 
it desirable in every case where practicable without too 
great expense, unless possession is evidenced by lock and 
key, actual possession by agent, or constructive possession 
under bond, indemnity, or other statutory provision. 3 

1 Root v. R. R., 45 O. S. 222; Murfree on Sheriffs. $$ 258-65. 

2 1b. $ 258. 3 Ib $260. 












110 CONSTABLES, MARSHALS, ETC. 

50. When property to be sold immediately — Summons by pub* 
lication is provided for by law when property has been at¬ 
tached and the summons has not been and can not be 
served in the county ; and \shen the cause is continued for 
this purpose, and it appears that any of the property taken 
under the attachment is live stock, or is of a perish ble na¬ 
ture, the justice may issue his order, directing the officer, 
having the custody thereof, to dispose of it as upon exe¬ 
cution. 1 

51-53. Form of such order. After the usual caption, such as 
is the order of attachment, will come words to this effect: 

“The action above mentioned having been adjourned, 
you are hereby ordered to sell and dispose of, as upon exe¬ 
cution, the following designated property attached by you 
in said action and now in your custody, to wit;” [ Descrip¬ 
tion of property here.'] 

You will make due return of this order on the-day 

of -, 19- 

Witness my hand [etc., as in order of attachment], 

54. The return on such order will be the same as given in 
paragraphs 52-55 of Chapter 17. 

55. The money realized therefrom must be paid over to the 
justice and applied as other money realized from the sale 
of the property attached is applied. 2 

56. When there are several orders of attachment against the 
same defendant, in the hands of the same officer, they must 
be executed in the order in which they were received by 
said officer ;* personal property held on attachment by one 
officer, is not subject to levy and seizure under writs in the 
hands of another officer. In order to attach property in 
the custody of an officer under legal process, unless "the 
writ is placed in his hands, he must be proceeded against 
as a garnishee.* And this rule is not changed by the assent 
of the officer holding the property, to the subsequent so- 
called levy 5 

57. Different attachments of the same property may be 
made, and one inventory and appraisement will be suffi¬ 
cient; the lien of the attachments will be in the order in 
which they are served. The subsequent attachments must 
oe served on the property, as in the hands of the officer, 
and subject to the prior attachments. 6 

1 §§ 10263, 10264. 2 § 10264. 3 § 10257. 

* Locke v. Butler, 19 O. S. 587 ; Bailey v. Childs, 46 O. S. 557. 

5 Bailey v. Childs, 46 O. S. 557. 

6 § 10261. The justice, who issued the attachment having the prior¬ 
ity of lien, determines all questions as to the priority of liens on the 
property attached. §§ 10261, 10284. 

Attached goods in the custody of an officer can not be attached by 
another officer under another writ. But a second attachment, or 
more, may be made by the same officer who made the first and sub¬ 
sisting one. In cases of such second or subsequent attachments by 


ATTACHMENT OF DEFENDANT’S PROPERTY. Ill 


58. Property in the hands of an officer by virtue of an 
execution, can not be attached, subject to such execution, 
by another officer. 1 

59 . When property attached must be discharged , if proper bond 
given therefor. The constable must deliver the property at¬ 
tached to the person in whose possession it was'found, 
when such person executes, in the presence of the con¬ 
stable, an undertaking to the plaintiff, with one or more 
sufficient sureties resident in the county, to the effect that 
the parties to it are bound, in double the appraised value 
of said property, that the said property, or its appraised 
value in money, shall be forthcoming to answer the judg¬ 
ment of the court in the action. 2 

60. As to property lost or destroyed. But if it appears to the 
court that any part of said property has been lost or de¬ 
stroyed by unavoidable accident, its value must be remit¬ 
ted to the person or persons so bound. 2 

61-63. Form of such redelivery undertaking — 

E. F., Plaintiff, ] Before C. D., a Justice of the Peace 

v. >- within and for College township, 

G. H., Defendant. J Knox county, Ohio. 

The following property, to wit: [describe it as in the in¬ 
ventory'], having been attached in this action, in the hands of 
said G. H. [or, T. P., if so], by A. B., constable, on an order is¬ 
sued by said justice, dated-, 19—, and now redelivered 

to him, we bind ourselves to the above named plaintiff in 

the sum of-dollars, double the appraised value of said 

property, that the said property, or its appraised value in 
money, shall be forthcoming to answer the judgment of the 
magistrate in this action. G. H., 

L. M., 

N. O. 

Done in my presence, and approved by me, this 21st day 
of April, 19—. A. B., Constable. 

64. When attached property to be restored to defendant. 
If, at any time before judgment, an undertaking, approved 
by the justice, be executed to the plaintiff, to the effect that 
the defendant shall perform the judgment of the justice, the 

the same officer, he may levy them without the formality of again 
seizing the goods, since they are already in his possession. Murf. on 
Sheriffs, § 269. 

i Locke v. Butler, 19 O. S. 587. 

2 § 10260 (93 v. 141). Three days’ notice technical, and if not com¬ 
plied with, appeal must be dismissed. Metz v. Iszolardo, Court Index 
(Cincinnati), Feb. 2, 1913. 

The meaning and legal effect of this undertaking ns that on the order 
of sale issued thereafter in the action, the property, or its appraised 
value in money, will be delivered to the constable. If not so delivered 
or paid for, the constable may attach the property; and the parties 
interested in the avails of the property to satisfy the judgments in the 
attachment proceedings, may unite in an action on the undertaking, 
if the property, or its value, is not forthcoming on demand of the 
constable. See Swan’s Treatise, Chap. 27, § 5; Rutledge v. Corbin, 
10 O. S. 478. 





112 


CONSTABLES, MARSHALS, ETC. 


attachment in such action must be discharged, and restitu¬ 
tion made of any property taken under it, or the proceeds 
thereof, if sold. 1 

65. The attachment may be discharged by the justice, on 
motion of the defendant, on the ground either that the 
affidavit is insufficient, or that the cause stated in the affi¬ 
davit is untrue. In either case above mentioned an order 
similar to the one next below will be issued to the officer 
holding the attached property, which he must, of course, 
obey. 

66. If judgment be rendered in favor of the defendant in 
the original action, the attachment must be discharged, and 
the property attached, or its proceeds must be returned to 
him, unless the plaintiff appeals the case to the court of 
common pleas, 2 or the property be held by other attach* 
ments. 

67. During the time allowed by the justice to file the ap¬ 
peal bond, the property must be kept by the officer, 2 and 
till he is ordered to return it. If the appeal bond be not 
given, the officer must return the propertry, or its proceeds, 
if sold, to the defendant, or to his agent. 

68-70. j Form of order to return attached property to defendant. 

[ The usual heading, i. e., the county, etc., names of parties, etc., 
comes first.] 

On the-day of -, a. d. 19—, a bond to perform the 

judgment of the court in this case having beeii duly exe¬ 
cuted and filed [or, on motion and hearing; or, judgment 
having been rendered for the defendant], 1 discharged the 
attachment in this case. 

You are therefore ordered to return to the 6aid G. H. the 
property hereto attached by you on the order of attach¬ 
ment issued to you in said case. C. D., J. P. 

71. How judgment in attachment satisfied; order of sale. If 
judgment be rendered for the plaintiff, it must be satisfied 
as follows: So much of the property remaining in the 
hands of the officer, after applying the moneys arising from 
the sale of perishable property, and so much of the per¬ 
sonal property, if any, whether held by legal or equitable 
title, as may be necessary to satisfy the judgment, must be 
sold by order of the justice, under the same restrictions and 
regulations as if it had been levied on by execution. 3 

72. Order to reseize the property. The justice may order the 
constable to repossess himself, for the purpose of selling it, 
of any of the attached property, which may have passed 
out of his hands without having been sold, or converted 
into money; and the constable has, under such order, the 
same pow r cr to take the property, as he would have under 
an order of attachment. 4 

1 § 10287. 2 § 10279. 3 § 10281. * § 10282. 



ATTACHMENT OF DEFENDANT’S PROPERTY. 113 

73-78. Form of order of sale of attached property, including 
an order to reseize property. 

The State of Ohio, Knox County, ss. 

E. F., Plaintiff, 1 Before me, C. D., a Justice of 

v. [■ the Peace in and for said 

G. H., Defendant, J county. 

To any constable of College township: 

You are hereby commanded to sell and dispose of, as upon 
execution, the goods and chattels attached by you upon an 
order of attachment issued in the above action, to wit: [ de¬ 
scription of property.'] 

[Here may be inserted also: You are also ordered to repos¬ 
sess yourself, for the purpose of selling it, of any property 
attached by you in said action, which may have passed out 
of your hands without having been sold or converted into 

money, or so much of both as will satisfy the sum of -, 

etc., as below, or say:) or so much thereof as will satisfy 

the sum of - dollars,-cents debt, and - dollars, 

- cents costs, with interest from the- day of -, 

19— (Deing the amount of judgment then rendered in said 
action, remaining due and unpaid), and also increased 
costs. 

Make return of this order, and a certificate thereon, 
showing the manner in which you have executed the same, 
in thirty days from the time of your receipt thereof. 

Given under my hand, this 22d day of -, A. d. 19— . 

C. D., Justice of the Peace. 

79. The return of such order is the same as in pars. 52-55, 
of Chapter 17. 

80. The money arising from such sale, with the amount 
which may be recovered from the garnishee, must be ap¬ 
plied to satisfy the judgment and costs. 1 

81. If there be not enough to satisfy the judgment, it will 
stand, and execution may issue thereon, for the residue, in 
in all respects as in other cases. 1 

82. Any surplus of the attached property, or its proceeds, 
must be returned to the defendant. 1 

83. Trial of the right of property attached. If any of the 
property which has been attached, be claimed by any per¬ 
son other than the defendant, the claimant may have the 
validity of such claim tried, and such proceedings must be 
had thereon, with like effect, as in case the property had 
been seized upon execution issued by the justice and 
claimed by a third person. 2 See Chapter 18. 

84. As to indemnity, if property is in hands of third person. 
In general, if the property is not in the possession of the 
defendant in attachment, but is held by another person in 


i § 10282. 


2 § 10283. 



114 


CONSTABLES, MARSHALS, ETC. 


good faith, having, as against the defendant, a right to the 
possession, the officer should not intermeddle by attaching 
it, unless fully identified for so doing, or unless possession 
is voluntarily abandoned to him. 1 

85. Holding the property during proceedings in error in higher 
court. When an order discharging an order of attachment 
is made, and any person affected thereby excepts thereto, 
the justice must fix a number of days, not exceeding ten, in 
which such party may file his petition in error. During 
this time the property attached must be held by the con¬ 
stable, or other officer; and during these proceedings, and 
until further orders from the justice or the court to which 
the case has been taken, the constable must continue to 
hold the property. 2 

86. Officer’s return, etc., on orders, etc. The officer must re¬ 
turn upon every order of attachment what he had done un¬ 
der it; the return must show the property attached, and 
the time it was attached; when garnishees are served, their 
names and the time each was served must be stated. 3 

87. The officer must also return with the order all under¬ 
takings given under it. 3 

88. When to return “ no goods found.” If he finds no prop¬ 
erty of the defendant subject to seizure under the order of 
attachment, or if the only property he finds is such that he 
does not seize it because it is in the hands of another officer 
or in the hands of a third person, he should make the re¬ 
turn of “no property or effects found.” 

89. Return of “ owns real estate .” The law seems to imply 

that when no chattels are found, but that the defendant 
owns real estate in the county, the officer should state that 
fact in his return, as it provides that “ if, in any case where 
an order of attachment has been issued by a justice of the 
peace, it shall appear from the return of the officer . . . 

that the defendant is the owner of an interest in real estate 
in the county,” 4 then certain proceedings may be had to 
send the case to the common pleas court. 

90-91. Form of such returns — 

No property or effects found. [ Here state also, if true .*] The 
defendant is the owner of an interest in certain real estate 

situate in-township in said county, now occupied by 

H. T. A. B., Constable. 

92-96. Form of return , when chattels are found and seized — 

On April 22, 19—, I went to the place where the defend¬ 
ants’ property, described in the annexed inventory and ap¬ 
praisement, was found; and there, at - o’clock —m. of 

said day, in the presence and hearing of W. X. and Y. Z., 
two credible persons, did declare that, by virtue of this or- 

i Swan’s Treatise, Chap. 27, § 5. 2 § 10302. 2 § 10285. 4 § 10288. 




ATTACHMENT OF DEFENDANT'S PROPERTY. 115 

der, I attached said property at the suit of E. F., and did 
then and there attach it; and I then, with W. X. and Y. 
Z., two householders of the county of-, after adminis¬ 

tering to them an oath truly to inventory and appraise 
said property, made a true inventory and appraisement of 
said property, being all that was attached; and said in¬ 
ventory and appraisement, signed by me and said house¬ 
holders, is annexed to this order and returned therewith. 

Said property is now in my custody [or, if so, say]. Said 
property was delivered to T. P., in whose possession it was 
found, he having given an undertaking, with sufficient 
sureties, as required by law, which undertaking is herewith 
returned. 

[Or, if the facts require it, omit the preceding paragraph, and 
instead thereof, say:] On April 23, 19—, in obedience to a 

written order of I. S., justice of the peace of-township, 

- county, hereunto annexed, I restored the following de¬ 
scribed property above mentioned, to T. P., claimant, to 
wit: [here describe it as in the inventory.] 

[If a garnishee was served, here add : ] I could not get 
possession of the property alleged to be in the possession of 
T. P. [or, if a corporation, name it], the garnishee; and on 

April, 19—, at - o’clock — m., I served said T. P. [or, 

said corporation] with a copy of this order and of the 
notice to garnishee hereunto annexed, to appear and answer, 
etc., by leaving the said copies with the said garnishee 
personally [or, at the said garnishee’s usual place of resi¬ 
dence; or, with L. M., the president (or clerk, etc.) of said 
corporation; or, otherwise, as the case may require]. 

97. Form of return , when property is attached subject to 
a prior attachment. See paragraphs 56, 57. 

On April 24, 19—, I went to the place where the prop¬ 
erty described in an inventory and appraisement thereof, 
made under an order of attachment, in the action of E. F. 
against the within-named G. H., and served on the 22d 
day of April, 19—, and there, and on said 24th day otf 
April, 19 —, at 10 o’clock a. m., in the presence and hear¬ 
ing of S. T. and U. V., two credible persons, did declare 
that by virtue of this order I attached said property, and 
did then and there attach it, as in my hands, subject to 
said prior attachment. A. B., Constable. 

98. As to attachments before the debt is due, for which 
provision is made by the statutes,! the constable’s duties 
are the same as in other attachments; and they need there¬ 
fore no further consideration herein. 


1 §§ 10290-10296. 





116 


CONSTABLES, MARSHALS, ETC. 


CHAPTER 20. 


REPLEVIN. 


1. What property can be replevied; affidavit required, etc. 
When one or more articles of personal property are in the 
possession of a person who has not as good a right to such 
possession as another person has, this other person can ob¬ 
tain such property from the wrongful holder by an action 
of replevin. 

2. The first step in such an action is the filing of an affi¬ 
davit prescribed by law with the proper magistrate, by the 
person claiming the right of possession . 1 But with this af¬ 
fidavit the ministerial officer has nothing whatever to do. 

3. The summons and writ of replevin; its command. Upon 
such affidavit being made and filed with the magistrate, he 
must issue a summons as in other cases, but, in addition, 
commanding the officer immediately to seize and take into 
custody, wherever they may be found in the county, the 
goods and chattels mentioned in the affidavit, and deliver 
them to the plaintiff . 2 That is, a summons in effect like 
the one given in paragraphs 3-8 of Chapter 6 will be issued, 
but there will be inserted in it a command to seize and 
take charge of the goods described therein, and to deliver 
them to the plaintiff. 

4. But see further, carefully, about such delivery in para¬ 
graphs 31 to 49, below. 

5-10. Form of writ of replevin, with summons. The sum¬ 
mons, combined with the writ of replevin, as mentioned in 
paragraph 3, will be substantially as follows : 2 

The State of Ohio,-county, ss. 

To any constable of-township: 

You are hereby commanded to summon G. H. to appear 
before me, the undersigned, a justice of the peace in and for 

the said county, at my office therein, on the - day of 

-* 19 —5 at — o’clock — m., to answer the action of E. E. 

for wrongfully detaining the following described goods and 
chattels of the said E. F., to wit: [ here the goods are 
described ]. You are further commanded immediately to 
seize and take into your custody, wherever they may be 

1 See § 10462 (88 v. 275). a § 10463. But see pars. 31-49 of this chap. 


REPLEVIN. 


117 


found in said county, the said goods and chattels above 
mentioned, and deliver the same to the said E. F. 

You will make due return of this writ on the-day of 

- , a. d. 19—. 

Given under my hand, this -day of -, a. d. 19 —. 

C. D., Justice of the Peace. 

11 . How summons and writ of replevin is executed. The offi¬ 
cer must execute the writ by taking the property mentioned 
in the writ; and he must also deliver a copy of the writ 
to the person charged with the unlawful detention of 
property, or leave such copy at his usual place of resi¬ 
dence. 1 

12 . Form of certificate on copy of writ. The officer should 
make a certificate on the copy left with the defendant, or 
at his residence, which may be as follows: 

13. “ I certify the within to be a true copy of the orginal 

writ. A. B., Constable.” 

14. Breaking open buildings to execute writ. The officer, in 
executing the writ, may break open any building or in¬ 
closure in which the property claimed, or any part thereof, 
is concealed; but not until he has been refused an entrance 
into said building or inclosure, nor until he has demanded 
the delivery of the property and such delivery has been re¬ 
fused. 2 See Chapter 24. 

15. As to property in hands of third persons. When the offi¬ 
cer finds the property described in the writ in the posses¬ 
sion of a person not named in the writ, he should proceed 
as directed in paragraphs 50-52, below. 

16. Appraisement. For the purpose of fixing the amount 
of the undertaking, the value of the property taken must 
be ascertained by the oath of two responsible freeholders 
of the township, whom the constable must swear truly to 
assess the value thereof. 3 This appraisement must be re¬ 
turned to the magistrate with the writ of replevin, 4 and 
may be in form as follows: 

17-20. Form of inventory and appraisement of property taken 
in replevin — 

We,"the undersigned, two freeholders, residents of - 

township, -county, Ohio, having first been duly sworn 

by A. B.. constable of said township, to assess the value of 
the property seized by virtue of a writ of replevin, issued 
by C. D., justice of the peace of said township, at the suit 
of E. F. against G. H., do, upon actual view, assess the value 
thereof as follows, viz : 

i § 10464. * s ±0*79. 8 $ 10471 (88 V. 227). 4 § 10464. 




118 


CONSTABLES, MARSHALS, ETC. 


One “ Buckeye ” mower, 

One spring wagon. 

One set harness. 


$60.00 

20.00 

10.00 


Total value... 

Witness our hands, this-day of 


$90.00 



Appraisers. 


21. Constable's certificate as to appraisement. The law does 
not specifically require the ministerial officer acting under 
the writ to make any certificate on this inventory and ap¬ 
praisement. Yet from the nature of the proceedings and 
the other requirements in such cases, he should make, on 
the back of the foregoing inventory, or below the signatures 
thereon, a certificate substantially as follows: 

22-24. Form of such certificate — 

1 do hereby certify that the within [or, above] named C. 

P. and D. Q., two responsible freeholders, residents of-- 

township, - county, of the State of Ohio, were duly 

summoned and sworn by me truly to assess the value of 
the within [or, above] described property, and make ap¬ 
praisement thereof as within [or, above] set forth, this- 

day 0 f- j 19 — # A. B., Constable. 

25. When the officer must take possession of the property. The 
constable is not required to take possession of the property 
described in the order until there is executed by sufficient 
surety of the plaintiff, a written undertaking to the defend¬ 
ant, to the satisfaction of the constable, to the effect that 
the plaintiff will duly prosecute the action, and also that, 
in the event that the suit shall be decided against the 
plaintiff, that the plaintiff will pay the costs made upon 
such order, and the expenses incurred in the care and man¬ 
agement of the property to be taken. 1 

26-29. Form of replevin bond by plaintiff , to satisfy constable , 
etc .— 

E. F. ] In replevin, before C. D., a justice of the peace of 

vs. >- - township, - county, Ohio. Docket-, 

G. HI. j No.-, page- 

We bind ourselves to the defendant, G. H„ in the sum of 
-dollars, that the said plaintiff, E. F., shall duly prose¬ 
cute the action designatea above, and that in the event that 
the suit shall be decided against him, 2 he will pay the costs 
made on the order of replevin, and the expenses incurred 

i§ 10465 (88 v. 275). 

2 Here will be “him,” “her,” or “them,” if plaintiff be a natural 
person or persons, and “it” if a corporation ; and the next word will 
he “he.” “she,” “they,” or “it,” as the facts require. 







REPLEVIN. 


119 


in the care and management of the property to be taken. 

This undertaking, and the sureties') E. F., Plaintiff, 
thereon, approved by me. vL. M., 1 0 

A. B„ Constable, J N. 0.| f Suretles - 
30. This bond is for the benefit of the constable or other officer 
who might seize the goods, and then, if the plaintiff was ir- 
lesponsible, and discontinued the case, find that he could 
get no fees. Such officer may proceed without requiring 
this bond, if he chooses so to do. 


31. When the replevied property must be delivered to the plaint¬ 
iff; replevin bond. If the plaintiff executes to the defendant, 
within twenty-four hours after seizure of the property by 
the officer, 1 a written undertaking, with one or more suffi¬ 
cient sureties, in at least double the value of the property 
taken, but in no case less than fifty dollars, to be approved 
by the justice, to the effect that the plaintiff will duly prose¬ 
cute the action, and that, in case the judgment shall be 
against him, he will then return the property taken or pay 
the value so assessed, at the election of the defendant, and 
also pay the damages assessed for the taking, detention, and 
injury to the property, and costs of suit, then, said under¬ 
taking being duly executed, but not before the time named 
in the summons for the trial, the constable (or other officer 
to whom the writ was issued) must deliver to the plaintiff, 
or to his agent or attorney, the property replevied, except in 
the cases specified in paragraphs 40 and 46, below. 2 

32-37. Form of replevin bond by plaintiff , to return property, 
pay damages, etc. The undertaking mentioned in the preced¬ 
ing paragraph must be in form substantially as follows: 

E. F. I In replevin, before C. D., a justice of the peace of 
vs. [■ Mohican township, Ashland county, Ohio. Docket 

G. H. j -, No.-, page-. 

We bind ourselves to the * defendant, G. H., in the sum of 
-dollars, that the said plaintiff, E. F., shall duly prose¬ 
cute the action designated above, and that, in case the judg¬ 
ment shall be against him, he shall then return the property 
taken, or pay the value thereof as assessed in said action, at 
the election of the defendant therein, and also pay the 
damages assessed for the taking, detention, and injury of 
said property, and costs of suit. 

This undertaking, and the sureties I E. F., Plaintiff, 
thereon, approved by me.^ ^ j p j M. N., j g ureties _ 

38. What officer must do, if bond not given in twenty-four hours. 
If the undertaking mentioned in paragraphs 31-37, above, 
is not given within twenty-four hours from the taking of 
the property under said writ of replevin, the officer must 
return the property to the defendant. 3 


1 See par. 38, on this page. 


2 § 10466 (88 v. 275). 


8 § 10473. 


120 


CONSTABLES, MARSHALS, ETC. 


39. Officer liable for what neglect. If the officer deliver any 
property so taken to the plaintiff, his agent or attorney, or 
keep the same from the defendant, without taking such se¬ 
curity within the time aforesaid, or if he take insufficient 
security, he will be liable to the defendant in damages. 1 

40. Officer's duty as to replevied heir-looms, keepsakes, relics, etc. 
In all cases where the property replevied consists of heir¬ 
looms, personal keepsakes, or other article of property, the 
value of which consists, in whole or in part, i*n its being a 
relic, model, gift, family picture, painting, or rare produc¬ 
tion of art or nature, and not wholly in its general market¬ 
able character, the officer must retain and keep the same, 
subject to the order of the court, if the defendant, his agent 
or attorney, on or before the time named in the summons 
for trial, tiles his motion, in writing, with the magistrate, 
for an order requiring the officer to retain said property, 
subject to the final order of the court. 2 

41-44. The form of such order, if given, may be as follows: 

State of Ohio,-county,-township. 

To A. B., Constable: 

You are hereby ordered to retain and safely keep the fol¬ 
lowing described property, taken by you in replevin in the 
suit of E. F. v. G. H. before me, the undersigned magistrate, 
to wit: [ here is specified the property to be so kept], till further 
order. C. D., Justice of the Peace. 

45. In case the defendant does not file said motion, or the 
magistrate, upon application of either party, refuses to order 
the officer to retain said property, for the reason that it does 
not belong to one or more of the kinds of personal property 
aforesaid, the officer must deliver said property to the plaint¬ 
iff, his agent or attorney, upon the execution of an under¬ 
taking as provided in paragraphs 32-37, above, within one 
day after the expiration of the time for filing said motion, or, 
in case said motion is filed, within one day after the refusal 
of the magistrate to order the officer to retain the property. 2 

46. When the property, though not heir-looms, etc., must be given 
to defendant before trial. The defendant may, at any time be¬ 
fore the time named in the summons for the trial, and after 
the appraisement, execute an undertaking to the plaintiff, 
with one or more sufficient sureties, in double the appraised 
value of the property, to be approved by the justice, condi¬ 
tioned that the defendant will safely keep the property, and, 
in case the judgment shall be against him, that he will then 
return the property taken, or pay the value so assessed, at 
the election of the plaintiff, and also pay the damages as¬ 
sessed for the taking, detention, and injury of the property, 
and costs of suit; and then the property seized must be re- 


i § 10473. 


2 § 104GG (88 v. 275). 


REPLEVIN 


121 


turned by the officer to the defendant, to be retained by the 
defendant until the determination of the action. 1 

47. The form of such bond. [Follow the form in paragraphs 
32-37, above , to the *, then add] plaintiff, E. F., in the sum of 

-dollars, that the said defendant, G. H., will safely keep 

the property taken in the action designated above, and that 
in case the judgment shall be against him [or her, etc.: see note 
2 , page 118] he shall then return the property taken, or pay 
the value thereof as assessed in said action, at the election 
of the plaintiff’ therein, and also pay the damages assessed 
for the taking, detention, and injury of said property, and 
costs of suit. 

This undertaking, and the sureties t. 



thereon, approved by me. 

C. D., Justice of the Peace, 


48. Final disposition of keepsakes, etc., in hands of officer. 
When any replevied property remains in the officer’s hands 
as directed in paragraph 40 or 46, above, or in other proper 
way, the magistrate must, at the time of rendering final judg¬ 
ment, determine which of the parties is entitled to the pos¬ 
session of such property, and order the officer to deliver it 
to the proper party accordingly. 2 

49. When replevied property must be turned over to the sheriff. 
In case the appraised value of the property exceeds three 
hundred dollars, or in case an appeal is taken from the final 
judgment and order of the magistrate, he must order the 
officer to turn over the property in his possession to the 
sheriff of his county, to be held by such sheriff as in like 
cases originating in the court of common pleas. 3 

50. Officer's riqhts, duties, etc., when property is in hands of a 
third person. The writ of replevin confers no authority on 
the officer to seize property which is not actually or con¬ 
structively in the possession of the party named in the writ. 
And where the property is taken from the possession of a 
third person who is the real owner, the writ will not justify 
the officer in taking it, although it is the identical property 
described in the writ. 4 

51. To illustrate: Suppose that the magistrate issues a 
writ of replevin to an officer, directing him to seize a cer¬ 
tain horse therein described, claimed by the plaintiff, E. F., 
and unlawfully detained from him by the defendant, G. H.; 
and the officer, on going to G. H.’s to seize the horse, finds 
it in the possession of T. P., who claims to be its real owner, 
and wffio is not a party to the suit. In such case, it might 
appear on proper trial that G. II. and T. P. had entered 
into collusion to cheat E. F., and that G. H. had only given 
the horse to T. P. to keep for a short time, for that purpose; 


i § 10467 (88 v. 275). 2 §§ 10880, 10881. 3 § 10468 (88 v. 275). 

* See State v. Jennings, 14 O. S. 73 ; lb. 79, 80, and eases there cited. 


122 


CONSTABLES, MARSHALS, ETC. 


or, it might be that T. P. was telling the truth, and that the 
horse is really his. If it should finally be adjudged that T. 
P. had the horse for the purpose of such cheating, it not 
being his, it would be consti'uctively in the possession of G. 
H., though actually in the possession of T. P., and the officer 
would be liable on his bond if he failed to seize it. But if 
T. P. were telling the truth, and the officer had seized the 
horse, he would be liable to T. P. for having done so. 1 The 
officer’s danger arises from the fact that T. P. is not a party 
to the suit, and the officer is not ordered to seize T. P.’s 
property. 2 

52. Indemnifying bond in such case. The officer should re¬ 
quire an indemnifying bond is such cases as above sup¬ 
posed, as he can not act with safety to himself without so 
doing; and if the plaintiff refuses to give such bond, the 
officer can properly refuse to seize property so found in the 
possession of third persons. 

53-58.' The form of such an indemnifying bond may be as 
follows: 

Know all men by these presents, that we, E. F., G. S., 
and H. T., are bound unto A. B., constable of - town¬ 
ship, -county, Ohio, in the sum of-dollars, for the 

payment of which we jointly and severally bind ourselves. 

Signed tnis - day of -, 19—. 

YVhereas, in a suit’ now pending before C. D., a justice 
of the peace of said township and county, wherein said E. 
F. is plaintiff and G. H. is defendant, and wherein said 
plaintiff charges said defendant with wrongfully detaining 
the following described property, to wit: [here describe, as it 
is in the writ, the property found in the possession of the third 
party]. A writ of replevin was issued by said justice of the 
peace to said constable, commanding said constable to seize 
and take into his custody the said property, which property 
said constable finds in the possession of T. P., who claims 
the right of possession thereof against both of said parties 
to the suit. 

Now the condition of this obligation is such, that i: the 
said E. F. shall pay to said A. B. all damages, costs, fees, 
and other expenses that may be sustained or incurred by 
said A. B. by reason of his seizing and taking into his cus¬ 
tody said property and proceeding in relation thereto as 
said constable should do if said property were found by 
him in the possession of said G. H., then this obligation is 
to be void; otherwise it is to remain in full force. 

E. F., 

G. S., 

H. T. 

1 See cases referred to in note 4, preceding page. 

* As to officer’s liability and protection under writs, see pars. 2&-28, 
Chap. 5. 




REPLEVIN. 


123 


59. When property is constructively in the possession of defend¬ 
ant, liable to seizure, and when not. Whenever the goods of 
one person, say E. F., are held for him by another person, 
say, T. P., T. P. being, for instance, the servant or agent of 
E. F., or a borrower from E. F., who has a right to claim 
his goods from such borrower, servant, agent, etc., then 
such goods are constructively in the possession of E. F., 
and the officer may seize them. But even if E. F. owns 
the goods, and T. P. has possession of them and has a lien 
on them, as, for instance, if T. P. were a mechanic who had 
possession of E. F.’s wagon for the purpose of making some 
repairs on it, which were done but not paid for, or if T. P. 
were a hotel keeper and had possession of E. F.’s trunk, 
clothing, or other articles, which he claimed the right to 
keep till E. F.’s hotel bill should be paid, then T. P. would 
have a lien on the goods, and would be entitled to their 
possession till such bill for repairs or such hotel bill should 
be paid. But if the constable or plaintiff should pay for 
these repairs or hotel bill, or offer legal tender money there¬ 
for, then T. P.’s right of possession would be gone, and the 
officer could safely seize such goods. If the officer took the 
goods from T. P. against his will while his lien was still 
good and unpaid, or the horse from T. P. if he were telling 
the truth, as mentioned in paragraph 51, above, then T. P. 
could replevy them back again from the officer, and at such 
officer’s costs. 1 

60. Concerning return of writ of replevin , appraisement , re¬ 
plevin bond, etc. On or before the return day of the writ of 
replevin, the officer should attach to it the inventory and 
replevin bond or bonds, if any were given; and must in¬ 
dorse on the writ an account of his doings, and deliver the 
writ so indorsed and the papers so attached to the magis¬ 
trate. The indorsement should be substantially as follows: 

61-66. Form of return on writ of replevin — 

On the- day of -, 19—, I replevied the property 

within described, and caused the same to be appraised as 
per schedule hereto annexed. 

[Or say, if so, instead of above: On the - day of -, 

18—, I went to the defendant’s residence to replevy the 
oroperty within described, and found it in the possession of 
T. P., who claimed the right of possession thereof. I then 
required the plaintiff to execute to me an indemnifying 
bond to protect me in case I should seize said property so 
found, which he refused to do. I therefore did not replevy 
it; or, if bond was given, say, which he duly executed, and 
I thereupon replevied said property, and caused the same 
to be appraised as per schedule hereto annexed.] 

Also, on the same day, I served said writ on the defend* 


i See same cases as in note to par. 50, above. 




124 


CONSTABLES, MARSHALS. ETC. 


ant by delivering a certified copy thereof to him personally 
[or, by leaving a certified copy thereof with him person- 

al S e within named E. F. having given a replevin under¬ 
taking to said G. H., defendant, with E. R. and F. S. sure¬ 
ties approved by C. D., justice of the peace, herewith re¬ 
turned, I delivered said property to said E. F. 

[Or, say, if so: The within named E. F. failed to give a 
replevin bond according to law, and I returned said prop¬ 
erty to the defendant; or otherwise state briefly, but clearly, 


what was done under the tvrii]. A. B., Constable. 

67. My fees on this writ: 

[Give items, as, for instance :] 

Service and return of this writ. $ .40 

Mileage, 2 miles.25 

Copy.25 

Summoning and swearing appraisers.... 1.00 

Replevin bond.40 

Indemnifying bond.40 


Total 


$3.70 









FORCIBLE ENTRY AND DETAINER. 


125 


CHAPTER 21. 

FORCIBLE ENTRY AND DETAINER. 


1. Notice to leave premises. The first step in proceedings 
Defoie it magistrate to recover possession of lands or tene¬ 
ments is the service of a notice, in writing, by the person 
desiring to recover possession, upon the person who has un¬ 
lawfully entered upon and retains possession of such lands 
or tenements, or who, having lawfully entered, unlawfully 
retains possession of such lands and tenements, against the 
will of the person entitled to their possession. 1 

2. It is generally against tenants holding over beyond their 
term that such proceedings are had, though the law specifies 
several other cases in which they can be instituted. 2 

3. Serving the notice. The notice mentioned above may be 
served for the person desiring to recover possession either 
by himself or by some one else for him, as by his attorney 
or other agent. 

4. As a matter of fact, such person often asks the constable 
or marshal to serve the notice, who then acts, in this par¬ 
ticular, not as an officer, but as such agent. The notice may 
be in form, and in such case should be signed, as follows : 

5-10— 

To G. H.: 

You will please take notice that I want you to leave the 
premises you now occupy, and which you have rented of 
me, situated and described as follows: [ here describe the prem¬ 
ises briefly as practicable , but so clearly as to leave no doubt as to 
what premises are meant , as, for instance ] the three story brick 

dwelling-house on the north-west corner of E- and 

W-streets, known as number 397 W-street in Cincin¬ 

nati, county of Hamilton, and State of Ohio. 

Your compliance with this notice within three days [or, 
on or before the 31st day of May, 18— [.giving not less than 
three days' notice ], will prevent legal measures being taken by 
me to obtain possession of the same, agreeably to law. 

Yours, respectfully, 

E. F., [the plaintiffs name.] 

Dated May 25, 19—. By A. B. [the constable’s signature ]. 

11. How served. Whether the notice is served by the 

2 See § 10440. 


1 § 10451. 


126 CONSTABLES, MARSHALS, ETC. 

plaintiff, or by the officer for him, it should be served by 
leaving a correct copy of it with the person proceeded 
against personally; or, if he can not be found, then by leav¬ 
ing such copy at his usual place of residence. 1 

12 . A memorandum should be made on the notice, stating 
when and how it was served, though this is not required by 
law. Such memorandum may be in form as follows: 

13—14— 

On May 25, 19—, 1 served the within notice on the within 
named G. H., by leaving a true copy thereof with him per¬ 
sonally [or, at his usual place of residence.] 

E. F., 

[By A. B., if so.] 

15. The constable must serve the summons, and make re¬ 
turn thereon, as in the case of other summons in civil ac¬ 
tions. Such service must be made at least three days be¬ 
fore the day of trial appointed by the justice. 2 The sum¬ 
mons will be substantially as follows: 

16-22. Form of summons in forcible entry and detainer. 

The State of Ohio,-County, ss. 

To any constable of -township : 

Whereas, complaint is made before me, the undersigned, 
one of the justices of the peace within and for said county, 
by E. F., plaintiff, against G. H., defendant, for the forcible 
entry and detention of the following described premises: 
[Here the premises are located and described .] 

You are therefore commanded to summons the said G. H. 

to appear before me, at my office, in-township, in said 

county, on the-day of-, 19—, at-o’clock, — m., 

of said day, to answer said complaint. And of this writ 
make due return, on the- day of -, a. d. 19—. 

Given under my hand, this -day of -, a. d. 19—. 

C. D., Justice of the Peace. 

23. Indorsement on summons will be substantially as fol¬ 


lows : 

Justice’s costs.$ 

Constable’s costs, items. 

Service and return.40 

Mileage, three miles.30 

One copy.25 

[etc., if other costs.] - 

Total . $- 

i See § 10451. 


2 § 10456. See Chapter 6 as to summons. 

When the writ is not served three days before the trial, owing to 
the negligence of the officer, he renders himself liable to the plaintiff, 
who can recover by suit the damages he has sustained. Swan’s 
Treatise, 546. 

















FORCIBLE ENTRY AND DETAINER. 


127 


24-25. Form of certificate on the copy served. 

I certify that the within and above is a true copy of the 
original writ, and of the indorsements thereon. 

A. B., Constable. 

26. Form of return on summons. Follow' the forms given 
in Chapter 6. 

27. If a jury is demanded, how to he served. Either party to 
such a proceeding may demand a jury, in which case the 
constable will receive from the magistrate a summons for 
a jury like that given in paragraphs 6-12 of Chapter 8; and 
the officer receiving such* summons must then proceed in 
obedience to such summons in every particular, serving the 
jurors, making return, etc., as directed in the chapter just 
named. 

28. When writ of restitution issues. If judgment is rendered 
for the plaintiff, a writ of execution will be given to the 
constable, which must be substantially as follows: 1 

29-34. Form of writ of restitution. 

The State of Ohio,-county, ss. 

To any constable of -township. 

Whereas, in a certain action for the forcible entry and 
detention [or, for the forcible detention] of the following 
described premises, to w r it: {the property is here described], 
lately tried before me, wherein E. F. was plaintiff and G. 

H. defendant, judgment was rendered on the - day of 

-, A. d. 19—. that the plaintiff have restitution of said 

premises; and that he also recover costs in the sum of- 

dollars and-cents. 

You, therefore, are hereby commanded to cause the de¬ 
fendant to be forthwith removed from said premises, and the 
said plaintiff to have restitution of the same; also, that you 
levy of the goods and chattels of the said defendant, and 
make the costs aforesaid, and all accruing costs; and of this 
writ make legal service and due return. 

Witness my hand, this-day of -, a. d. 19—. 

C. D., Justice of the Peace. 

35. It will be noticed that the foregoing is both a w r rit of 
restitution and execution, since it commands the officer to re¬ 
store possession to the plaintiff, and to levy on defendant’s 
goods to make the costs. 

36. How such writ executed. The officer must, within ten 
days after receiving the writ, execute it by restoring the 
plaintiff to the possession of the premises, and must levy 
and collect the costs and make return, as upon other execu¬ 
tions. 2 

37. As to executions, how and upon what property levied, 
how 7 returned, see and follow Chapters 11 to 18 inclusive. 


i§ 10460. 


2 § 104G1. 


128 


CONSTABLES. MARSHALS, ETC. 

38. Forms of return on writ. If the defendant had no good* 
whereon to levy, and the officer consequently executed the 
writ by duly restoring the plaintiff to the possession of the 
premises, the officer’s return on the writ should be as fol¬ 
lows: 

39_40_ 

(_) n the - day of -, 10—, by virtue of this writ, I 

restored the plaintiff within named to the possession of the 
within designated premises. A. B., Constable. 

41. If goods were levied on and sold, the return may be 
substantially as follows: * 

42-44— 

On-, 19—, by virtue of this writ, I restored the plain¬ 

tiff to the possession of the within designated premises. 

1 have also levied upon, advertised, and sold, for the 
costs, as required by law, goods and chattels of the defend¬ 
ant asset forth below: 


articles. 

NAME OP PUR¬ 
CHASER. 

PRICE. 

STATEMENT OF COSTS. 




Am’t made by sale ... $ . $_ 

Costs stated within. 

My fees on this writ. 

Other costs accrued. 


















Total costs. $ — 

Am’t ret’d to def t . % _ 








A. 


B. f Constable. 


45. If defendant pays costs without sale, erase all the 
above from the word “ premises ” except the statement of 
costs, change the item “ am’t made by sale ” to “ am’t made 
by cash,” and write on the blank lines “the defendant has 
paid the costs as set forth above, making the within directed 
levy and sale unnecessary.” 

4(>. What officer must do, if case is taken to common pleas 
court on error. If the magistrate should receive notice that 
the proceedings have been stayed by the court of common 
pleas, in error, as provided by law, he must at once issue 
his order to the officer executing the writ, commanding him 
to delay all further proceedings upon the writ of restitution; 































FORCIBLE ENTRY AND DETAINER. 


129 


and if the premises have been restored to the plaintiff, such 
officer must at once place the defendant again in possession 
of the premises, and return the writ with his doings and 
costs taxed thereon. 1 

47. For convenience, such order should be attached to 
the writ of restitution. 

48-50. Form of return on writ , if such order received before re « 
storing possession to plaintiff— 

On-, 19—•, I received an order, hereto attached, to de¬ 

lay all further proceedings on this writ, for which reason I 
have taken no action hereon [or, if any steps were taken, 
state what they were]. A. B., Constable. 

51-54. Same, if receivedl after. 

[Make return of all doings as directed in pars. 38-45, 

above, and then add to such return: On the - day of 

-, 19—, I received the order hereto attached, and on 

-, 19—, by virtue thereof, I restored the defendant to 

the possession of the premises above mentioned. 

My fees on said writ and order. A. B., Constable. 

[Here give items not already given, or erase items given, 
and here give all items on writ and order.] 

i§ 10461. 






130 


CONSTABLES, MARSHALS, ETC. 


CHAPTER 22. 


ARRESTS, GENERALLY, AND GENERAL PRINCI¬ 
PLES RELATING THERETO. 


1 . What arrests may he made for, etc. Arrests may be 
made in civil cases when based upon certain fraudulent 
conduct of the person to be arrested, as more fully set forth 
in Chapters 25 and 26. They may be made for contempt of 
court, as in Chapter 27; for violation of a law or ordinance, 
as in Chapter 28; in proceedings to keep the peace, as in 
Chapter 31; and under search warrants, as in Chapter 30. 

2. But as the spirit of our institutions and our laws jeal¬ 
ously guard the liberty of the individual, as well as the 
peace and dignity of the community and state, there are 
certain principles or laws regulating arrests, not all of them 
enacted into statutes, which the arresting officer must regard. 

3. Some of these principles, and especially the statutory 
regulations as to arrests, are given in the chapters relating 
to them, mentioned above. But the more general ones 
are given here, classed as applicable (11 to both civil and 
criminal cases, (2) to criminal cases only; and (3) to civil 
cases only. 

4. There are other important matters kindred to the fore¬ 
going, some of them relating to privilege from arrest, given 
in Chapter 23 hereof, and to the forcible entry into dwel¬ 
lings, breaking outer and inner doors or windows to make 
arrests, to serve certain writs, etc., given in Chapter 24 
hereof. 

5. The officer wdiose duty it may become to make any ar¬ 
rest should be familiar with all of these before he is called 
on to make such arrest. 

6 . Arrest defined. Seizing a person and detaining him in 
the custody of the law, is arresting such a person. 

Some Matters Applicable to Arrests in Both 
Civil and Criminal Cases. 

7. What constitutes an arrest. An arrest about which there 
can be no question or quibble, is made by the officer seiz¬ 
ing or touching the defendant, and informing him that 
he is a prisoner, or is arrested, or words to that effect. It 


ARRESTS, GENERALLY, ETC. 


131 


makes no difference how slight the touch may be; touch¬ 
ing defendant’s hand which is out of a window, etc., is 
enough. 1 . Nor need this touching be done by the officer 
himself; if he be near, directing the operation, it may be 
done by another person. 2 

8 . But if the defendant submits to the officer, even though 
the latter do not touch him, the arrest is complete. For in¬ 
stance, if the officer and defendant go together to the latter’s 
house, and he there executes a bail bond, or if the officer meets 
the defendant on horseback, or in a carriage, or in a room, 
and says to him, “ I have a writ against you, you are my 
prisoner,” upon w r hich he submits, turns back, or goes with 
the officer, it is a complete arrest; but not so if he had fled, in¬ 
stead of going with the officer, unless the latter had touched 
or laid hold of him; physical contact is not necessary if the 
defendant knows he is meant to be arrested, and goes in 
good faith with the officer. 3 

9. But if the officer should only show a writ to a defend¬ 
ant, and should say nothing and do nothing to him, and he 
should voluntarily accompany the officer for some distance, 
this would not be an arrest. 4 And if a defendant pretend¬ 
ing, but not intending, to submit, flees before actual con¬ 
tact ; as where an officer, stating his wishes to the person 
he means to arrest, was answered, “ Wait for me outside, 
and I will come to you,” but instead of coming, that person 
escaped by another way, it was no arrest. 5 There is no ar¬ 
rest where a person is not deprived of his liberty. 6 

10 . Tr an officer come to the bedside of a sick person 
with a proper writ, and tell the invalid that if he do not 
satisfy plaintiff or give bail, he will take him and put him 
in charge of one of his men; or if an officer goes into a 
room and tells the defendant he arrests him, and locks the 
door, the arrest is complete, for in each case the defendant 
is in the control and custody of the officer, though he do 
not touch such person in either case. 7 

1 Genner v. Sparkes, 1 Salk. (K. B.. Eng.), 79; Whitehead v. Keys, 3 
Allen (Mass.), 495; Huntingdon v. Blaidsell, 2 N. H. 318; Sandon v. 

Jarvis. 4 Jurist. (N. S.), 387f lb., 15 Jurist. (N. S.), 860. 

3 Black v. Archer, Cowp. (K. B., Eng.), 65. 

3 Pike v. Hanson, 9 N. H. 491; Huntington v. Blaidsell, 2 N. H. 318; 
Huntington v. Schultz, Harp. (S. C.), 453; 18 Am. Dec. 660; Emery v. 
Chesley, 18 N. H. 198: Hart v. Flynn, 8 Dana (Kv.), 190; Gold v. Bissell, 
1 Wend. (N. Y.), 215; Buller’s N. P. (Eng.), 62(a); U. S. v. Benner, 1 
Bald. 239; Strout v. Gooch, 8 Me. 127; Jones v. Jones, 13 Iredell (N. C.), 
448; Field v. Ireland, 21 Ala. 240; Courtney v. Dozier, 20 Ga. 369; Rey¬ 
nolds v. Matthews, 2 Jurist. 989; Wood v. Lane, 6 Car. & P. (N. P., 
Eng.), 774. 

*2 New. 211. 

Under similar circumstances, a defendant went with the officer to 
the magistrate, and it was held to be no arrest. Arrowsmithv. Le 
Messurier, 5 Bos. & Pul. 211. 

6 Russen v. Lucas, 1 Car. & P. 153. * Hill v. Taylor, 50 Mich. 549. 

7 Grainger v. Hill, Bingh. M. Cases, 212, 220; Arch. Pr. 72. 


132 


CONSTABLES, MARSHALS, ETC. 


11 . Summary of the rule of arrest. From all the cases and 
dicta on this subject, may be gathered the general principle 
that whatever practically or theoretically gives to the officer 
the control of the person of the defendant, constitutes an ar¬ 
rest ; that personal seizure in the name of the law is the most 
obvious, usual, and unequivocal mode of executing process 
of this character; that a bona fide submission evidenced by 
words, or by the execution of bail bonds or other like in¬ 
struments, is an adequate substitute for personal contact; 
that, without such conta it, words of arrest by an officer, ac¬ 
cepted by the defendant, or not straightway resisted by pro¬ 
test, or flight, or otherwise, constitutes such an arrest as will 
bind alike the officer, plaintiff, and defendant. 1 

12. Writ protects officer serving it, when. The general rule is 
that a warrant or other writ, regular in form, issued by an 
officer having competent authority to issue must be served 
by the officer receiving it, and that it completely protects 
and justifies him in serving it; that he need not inquire 
into the regularity of the proceedings on which the writ is 
founded; and that if it be voidable or erroneous, it is a suf¬ 
ficient justification to the officer if he acts on it. But he 
must see, at Lis peril, that it is regular on its face, and that 
it appears to have been issued by a judicial officer having 
jurisdiction of the subject-matter, and upon legal cause 
shown. 2 

13. For instance, a warrrant issued in blank, no person 
being named in it, although written in afterward without 
authority, is void, and is no defense to such officer. 3 

14. And if, for instance, a notary public should issue a 
warrant for the arrest of a violator of a village ordinance, 
although the warrant might seem regular in form, it would 
not be, because signed by an officer having no jurisdiction. 

15. And if a justice of the peace should issue an order 

1 Murfree on Sheriffs, § 147. 

2 See pars. 26-28 of chapter 5; Newburg v. Munshower, 29 0. S. 617; 
Murfree on Sheriffs. $§ 100-104, citing very many cases. Also Drennan 
v. People, 10 Mich. 169; Gurney v. Tufts, 37 Me. 130, and cases in note 
below. 

The officer is not bound, therefore, to look behind a regular war¬ 
rant coming from a proper jurisdiction, and can not be held liable 
for damages in a civil action for making an arrest on such a war- 
rent, although the process may prove to be invalid. See Cooiey on 
Torts, 460; Murfree on Sheriffs. $ 1162. 

It is said by eminent English authority that, “although the war¬ 
rant of the justice be not strictly lawful, as if it express not the 
cause particularly enough, yet if the matter be within his jurisdic¬ 
tion as justice of the peace the killing of such officer in the execu¬ 
tion of his warrant, is murder, for in such case the officer can not 
dispute the validity of the warrant.” “A different rule,” remarks 
Judge Lumpkin, -‘would put in jeopardy the life of everv officer in 
the land. It never could be intended that the> should determine, at 
their peril, the sufficiency of every precept put into their hands.” 
Murfree on Sheriffs, $ 1164. 

3 Alford v. State, 8 Tex. Ap. 545; Rafferty v. People, 69 Ill. 111. 


ARRESTS, GENERALLY, ETC. 


133 


of arrest before judgment in a civil case in which the affi¬ 
davit stated no grounds of fraud, such order would not pro¬ 
tect the officer, because, in that case, the justice has no 
jurisdiction. 1 

16. To learn what officers may issue writs to constables, 
marshals and their deputies, policemen, watchmen, etc., and 
also what jurisdiction they have, that is, for what offenses, 
etc., they can issue writs, and what writs they can issue, see 
Chapter 2. 

17. What is a regular and sufficient warrant has been defined 
as follows. “ If the warrant is for an offense within the ju¬ 
risdiction of the justice, and the crime charged is described 
with sufficient precision to apprise the accused of the offense 
with which he is charged, the warrant is good and will pro¬ 
tect the officer.” 2 

18. Correct name of accused in warrant , arrest of right person, 
etc. The person to be arrested must be correctly named or 
particularly described in the warrant or order of arrest, and 
the officer must arrest the very person named or described 
in the writ. If that person is as commonly known by the 
name in the writ as by his real name, or if the name in the 
w r rit has the sound, though spelled differently from the real 
name, the officer may arrest him. 3 But the officer can not 
safely arrest Daniel Griswold under a warrant against 
Samuel GriswoM, 4 nor one whose last name only is in the 
warrant, 5 nor George Alford under a warrant for John 
Smith, 6 nor any body under a warrant against “persons 
who are suspected ” of offenses charged in the warrant. 7 

19. The arrest of the person intended, but under another 
person’s name and not under his own name, will not, gen¬ 
erally, protect the officer. 8 But see par. 22, below. 

20. But a warrant may be issued against a person entirely 
unknown who is described as well as possible therein. 
Such description must be sufficient to designate on whom 
it is to be served, by stating his occupation, appearance, 
peculiarities, residence, or other circumstances by which he 
could be identified. 9 

21. However, the law knows but one Christian name and 
the sur-name. So, if a person’s name be actually George 
Washington Middleton, the law is satisfied if he be named 

1 See pars. 3, 4. of Chapter 25. 

2 State v. Jones, 88 N. C. 671, 680. 

3 See Griswold v. Sedgwick, 6 row, 455; Prell v. McDonald. 7 Kas. 
426; Alford v. State, 8 Tex. App. 545; Gruraon v. Raymond. 1 Conn. 40; 
Mead v. Hawes, 7 Conn 332; Com. v. Crotty, 10 Allen, 403 ; 2 Taunt* 
401; 11 East. 110; 6 T. K. 234 ; 8 East. 328. 

4 Griswold v. Sedgwick. 6 Cow. 455. 

5 Prell v. McDonald, 7 Kas. 426. 

6 Alford v. State, 8 Tex. App 545, 

7 Gruraon v. Raymond, 1 Conn 40. 

8 See cases in preceding notes; also pars. 20-23. 

9 Meadv. Hawes, 7Conn. 332; Commonwealth,!;. Crotty, 10 Allen. 403. 



134 


CONSTABLES, MARSHALS, ETC. 


George Middleton; but it is not offended if he be desig¬ 
nated as George VV. Middleton or as George Washington 
Middleton, these latter two ways aiding to identify him by 
way of description, and to distinguish him from any other 
George Middleton who might be mistaken for him. 1 

22. And under an order of arrest, if there is a mistake in 
the name of the defendant, and he has been sued under 
such wrong name, and he has made no objection on the 
trial, he can not, when arrested under that name, take any 
advantage of such wrong naming; and the officer can not, 
in such case, refuse to serve process on account of said 
wrong name. 2 

23. In a certain civil case, John O’Shaughnessy was sued 
on a note made by John Shaughnessy, another person of 
the latter name, and judgment was rendered by default 
against said John O’Shaughnessy, who was also known un¬ 
der the name of John Shaughnessy, and he was arrested 
and imprisoned under a writ under this latter name, which 
writ was served and returned by an officer who knew that 
the wrong Shaughnessy was sued and imprisoned. But in 
an action against said officer for so doing, it was held that 
he was protected by the writ, and that he was not bound 
to go behind it, and run the risk of determining facts that 
would exempt O’Shaughnessy from arrest. 3 

24. It seems, however, that under the rule stated in 
paragraph 28 of Chapter 5, he could safely have refused to 
execute such a writ, even though it would protect him if 
he did execute it. 

25. Reason for arrest must be given , when. After a person 
has been arrested, with or without process, he has a right 
to know from the arresting officer the true reason or ground 
of his arrest, and such officer must answer any question as 
to such arrest, and must not assign a false reason therefor, 
and must not refuse to show the warrant, order, or attach¬ 
ment under which the arrest is made, after he can safely 
do so. This may, or may not be, before the prisoner is 
safely confined, or sufficiently secured or guarded to make 
his escape or rescue improbable. 4 

26. The officer must exercise a sound discretion in this 
respect, and is liable for any abuse of this discretion. 

27. No unnecessary harshness or violence in making arrests 
must be exercised by an officer; and if he inflicts bodily 
injury upon the person arrested, as by needlessly striking 
him with a mace, club, or other weapon, or needlessly 
shoots him, such officer is himself a criminal, liable to pun¬ 
ishment. He must use enough force to effect the arrest, 

1 See Swan’s Tr., Ch. 9, $ 3, note next below. 

2 See Strange. 156, 1218. 

3 O’Shaughnessy v. Baxter, 121 Mass. 515. 

4 See Cin. Police Manual. 


ARRESTS, GENERALLY, ETC. 


135 


and protect himself in case of resistance, but must use none 
in a wanton, or malicious, or swaggering, or over-zealous 
way. If no resistance is offered, and no attempt is made 
to escape, the officer has no right to seize and collar, rudely 
and with violence, his prisoner. 1 

28. Some of these provisions as to the use of force are 
more elaborately stated in paragraphs 51-53 below, and as 
there stated are applicable to civil cases also. But not so of 
paragraphs 54, 55. 

29. As to use of hand-cuffs, etc. The officer may use hand¬ 
cuffs or other means to prevent the escape of his prisoner 
if, in his discretion, he thinks it necessary. He would be 
liable only for a clear abuse of this discretion. 2 


Kelating to Arrests in Criminal Cases. 


30. Arrest without warrant, by whom, for what, etc., in officer's 
presence. A sheriff, deputy sheriff, constable, marshal, or 
deputy marshal, watchman, or police officer, must arrest 
and detain any person found violating a,ny law of this state, 
or any legal ordinance of a city or village until a legal war¬ 
rant can be ohtained. 3 

31. It will be noticed that the foregoing paragraph re¬ 
lates to any criminal offense whatever occurring in the officer’s 
presence —it relates to “ any person found violating ” a law 
or ordinance. 

32. When any person may arrest. When a felony has been 
committed, any 'person may, without warrant, arrest another 
who he believes, and has reasonable cause to believe, is 
guilty of the offense, and may detain him until a legal war¬ 
rant can be obtained. 4 

33. What are felonies, and what are misdemeanors. Offenses 
which may be punished by death, or by imprisonment in 
the penitentiary, are felonies; all other offenses are mis¬ 
demeanors. 5 

34. For a statement of what acts are offenses under the laws 
of this state, and which ones are felonies, and which ones 
are misdemeanors, see Chapter 32. 

35. Violation of ordinance is a misdemeanor. The severest 
penalty that can be imposed for the violation of an ordi¬ 
nance of a municipal corporation is a fine and imprison¬ 
ment in a county jail or in a work-house. 6 Such a violation 
is therefore a misdemeanor, and can not be made a felony. 


1 See Wrights. Keith. 24 Me. 158; Kregerv. Osborn. 7 Blackf. 74: State 
v. Mahon, 3 Harr. (Del.) 568; Burns v. Stale. 7 S. E. Rep. (Geo.) 88. 

2 Firestone v. Rice, 38 N. W. R. (Mich.) 885; State v. Stalcup, 2 Ired. 
50; Cochran v. Toher, 14 Minn. 385. 

3 8 1341)2. See pars. 40-405 next page ; 50 O. S. 189. 

* 8 13493. s § 12372. §§ 4361-4564. 


136 


CONSTABLES, MARSHALS, ETC. 


36. As to arrest without warrant. An officer may arrest any one, with¬ 
out a warrant, whom he has good reason to believe is guilty of felony, 
even though it afterward turns out that such belief was a mistaken 
one, if he has acted in good faith and on reasonable grounds. 1 A 
reasonable suspicion is sufficient to justify such arrest, whether the 
suspected person would probably escape before a warrant could be 
procured or not. 2 A reasonable ground of suspicion, supported by 
circumstances sufficient to warrant a cautious man in believing that 
the party is guilty of the offense, is sufficient. 3 So are instructions 
and information by telegraph from a public officer. 4 * So is the exist¬ 
ence of a warrant in the hands of another officer. 6 

37. The governor’s proclamation that a felony has been committed 
will justify an arrest of a person whom the officer has good reason to 
believe is the person described in the proclamation. 6 

38. When an offender is not likely to abscond before a warrant can 
be obtained, it is, in general, better to apprehend him by a warrant 
than for a private person or officer to arrest him of his own accord. 7 8 

39. When it is certain that a felony has been committed, or that a 
dangerous wound has been given, and the offender, being pursued, 
takes refuge in his own house, either a private person or an officer 
may, without any warrant, break open the doors after demand of ad¬ 
mittance. 7 

40. Where a breach of the peace is committed in the presence of 
the officer (in this case a marshal), he may, without a warrant, arrest 
the persons who participate therein. If, however, the officer was ab¬ 
sent when such offense was committed, and did not appear till after 
the affray had ended, public order restored, and the guilty parties had 
departed from the vicinity, and all the information the officer had of 
the affray ana of the parties to it, was the statements of bystanders 
who witnessed it, he had no authority in law to pursue and arrest the 
persons charged with the offense without first obtaining a legal war¬ 
rant therefor 3 

40a. The next preceding paragraph applies to misdemeanors gener¬ 
ally, as well as to breaches of the peace. 9 But a person carrying a 
concealed weapon may be arrested therefor without a warrant, be¬ 
cause he is violating the law. or ordinance, or both, when arrested. 10 

40b. Even where such an offense has been committed in the pres¬ 
ence of an officer, his power to arrest the offender should be promptly 
exercised, or it will be lost. 11 

40c. As to breaking doors, etc., to effect arrest, see Chapter 24. 

41. Confining prisoner till warrant procured. When the circumstances 
are such that the arrested person cannot be at once taken before a 
magistrate, the arresting officer may confine such person in any suit¬ 
able place till a warrant can be procured. A box car has been held to 
be a suitable place. 12 A room in the officer’s house, in a hotel, or the 
county or corporation jail, are the most usual places. No doubt in 
case of arrests by a marshal or policeman, or other such officer, the 
village or city jail or station-house is the proper place, as they are de¬ 
signed for this purpose among others. 

42. Such person may be taken to the county jail, and the jailer 
should receive him for a reasonable time. 13 

1 McCarthy v. DeArmit, 99 Pa. St. 63; State v. Grant, 7 Mo. 236. 

2 Holley v. Mix, 3 Wend. 350; Rohan v. Sawin, 5 Cush. 281. 

3 McCarthy v. DeArmit, above. See Firestones. Rice, 38 N.W. R. 885. 

4 Castro v. DeUriarte, 16 Fed. Rep. 93. 

6 Drennanv. People, 10 Mich. 169. 

8 Eames v . State, 6 Humph. 53 

7 Swan’s Treatise, Chapter 73, § 2. 

8 State v. Lewis, 50 O. S. 179. See Reinhart v. City, 49 O. S. 257. 

® lb. 184-6, and cases there cited. 

10 Ballard v. State, 43 0. S. 340; State v. Lewis, 50 O. S. 185. 

11 State v. Lewis, 50 O. S. 187-9, and cases cited. 

12 Arreson v. Thorstadt, 33 N. W. Rep. (Iowa) 607. 

13 Burnham v. Morrissey, 14 Gray 226; Com. v. Deacon, 8 S. & R. 47. 


ARRESTS, GENERALLY, ETC. 


137 


43. How long may an'ested person be detained without warrant. 
The officer must bring a person so arrested before a magis¬ 
trate, and must procure a warrant, as soon after the arrest 
as he reasonably can. 1 How long this is must depend on 
the circumstance of each case. If he delays unreasonably, 
he is liable to prosecution for false imprisonment, even if 
the arrest was lawful. He may keep a drunken person till 
he becomes sober. The time of arrest, the nearness and 
accessibility of the magistrate, the facilities of travel, the 
weather, the prisoner’s health, and similar matters, are all 
to be taken into account. The officer should act as promptly 
as practicable, and not delay at all if he can reasonably 
avoid it. 2 

44. As to discharging arrested person by arresting officer. It 
has been held that if an arrest is made by an officer on 
reasonable suspicion of felony, without warrant, and his 
suspicion vanishes, he may discharge the arrested person 
without bringing him before a magistrate at all, if he has 
not detained him an unreasonable time. 3 4 But it has also 
been held that the officer is liable for false arrest if he so 
discharges a person so arrested, unless such person ex¬ 
pressly waives his right to be so taken before a magistrate/ 

45. Notice of arrest. The arrested person should be noti¬ 
fied in some way that he is arrested by lawful authority. 5 
Showing or reading to him the warrant is of course suffi¬ 
cient notice. So is the sight by him of the officer’s badge 
of office, or uniform, 6 or the fact that he is arrested while 
actually committing a criminal offense, or being immedi¬ 
ately pursued from the scene of his crime, or by the arrest¬ 
ing person or officer stating his intention to arrest and his 
reason therefor. 7 

4G. Where an officer, authorized by statute to make ar¬ 
rests without a warrant, finds a person in the act of com¬ 
mitting a criminal offense, it is not necessary to the lawful¬ 
ness of an attempt to arrest him to first inform him of the 
charge upon which the attempted arrest is made, where the 
officer and the cause of arrest are known to the offender. 8 

47. Yet it is always safest and best to inform the person 
about to be arrested, of the charge upon which he is ar¬ 
rested, when it can be done without causing an escape. 

1 § 13492. 

2 See Arreson v. Thorstadt, 33 N. W. Rep. (Iowa), 607; Tubbs v. Tu- 
key, 3 Cush. 438; Potter v. swindle, 3 S. E Rep. (Geo.) 94; Johnson v. 
Americus. 46 Geo. 80; State v. Parker, 75 N. C. 249; Cochran v. Toher, 
14 Minn. 385; Burke v. Bell, 36 Me. 317. 

3 Bell v. Burke, above. 

4 State v. Parker, 75 N. C. 249; Cnffrey v. Drugan, 11 N. E. Rep. (Mass.) 
96; Brock v. Stimson, 108 Mass. 520; Phillips v. Fadden, 125 Mass. 198, 

3 State v. Phinney, 42 Me. 384; Drennan v. People, 10 Mich. 169. 

6 Yates v. People, 32 N. Y. 509. 

7 People v. Pool, 27 Cal. 572. 

8 Wolf v. State, 19 O. S. 248. 


138 


CONSTABLES, MARSHALS, ETC. 


48. When warrant need not be shown. The officer need no\ 
show the warrant to the person arrested in the following 
cases: (1) When the offense charged in the warrant is a 
felony, as in such cases the arrest may be made without 
any warrant being in existence even. 1 (2) When the of¬ 
fense charged is a misdemeanor which occurred in the offi¬ 
cer’s presence, for then, also, no warrant is needed. 2 (3) 
When the person arrested has notice of authority to arrest 
such as designated in paragraphs 45,46, above. 3 (4) When 
the offense charged is a misdemeanor, not committed in the 
officer’s presence, and the officer in good faith refrains from 
showing the warrant till after the arrest is made, and the 
prisoner is safe from escape or rescue, lest his prisoner es¬ 
cape or be rescued, he is justified, even if no such notice as 
mentioned above was given. 4 His first duty is to make the 
arrest directed by the warrant. 

49. When warrant must be shown. It follows that when the 
offense charged is a misdemeanor, not committed in the offi¬ 
cer’s presence, and the accused demands to see the warrant, 
and it can be shown without probably allowing the accused 
to escape arrest, the warrant must be exhibited or read to 
him. If so doing would probably result in such an escape, 
the arrest should be made first, and the warrant be shown 
as soon as may be safely afterward, as stated above. 

50. Probably the chief reason for this right to see the 
warrant is to enable the accused to know whether or not 
the arrest is to be made under lawful authority, since, if it 
be not by such authority, the arrest may lawfully be re¬ 
sisted. 5 

51. When the officer may use force; as to resistance and es¬ 
cape. The officer may use physical force, and as much of it 
as is necessary , to effect any arrest he has a right to make ; 
and if he can not alone make the arrest, he may call the 
bystanders, or even the whole power of the county, to help 
him. If the person sought to be arrested resists the officer 
or those so called on to help him, such officer and assistants 
may repel force by force, even to the extent of taking the 
life of the person resisting arrest. But no unnecessary 
force can be so used. 6 

1 See paragraph 30 of this chapter. 

2 See paragraph 32 of this chapter; also. Wolf v. State, 19 O. S. 243. 

8 Commonwealth v. Cooley, 6 Gray, 550; State v. Townsend, 5 Har¬ 
rington. 

4 See Commonwealth v. Cooley, 6 Gray, 350; State v. Phinney, 42 Me. 
384; Drennan v. People, 10 Mich. 169. 

5 See cases in note 3, next above; State v. Lewis, 50 O S. 184-7 

«See par. 53 and notes thereto; Wolf v. State, 19 O. S. 248; Murfree 

on Sheriffs, $ 1164; Chitty’s Crim. L. 55; Hale’s Pleas of the Crown; 
494; and any standard work on criminal law. See note to par. 53. 

In a prosecution for manslaughter against such officer for killing 
the deceased while in the attempt to arrest him w'thout a warrant, 
and it appearing that the deceased, knowing the officer and the cause 


ARRESTS, GENERALLY, ETC. 


139 


52. Like any other person, an officer may use as much 
force as is necessary in self-defense when he is attacked by 
persons resisting arrest or otherwise. But he must first be 
attacked, and must also be in reasonable fear of death or of 
great bodily harm, to justify him in killing any person in 
self-defense. Mere threats alone will not be any such justi¬ 
fication. 1 

53. If any person charged with an offense under any law 
or ordinance has been arrested, and attempts to break "away 
from the arresting officer or resists him, such officer may 
repel force with force, and need not give back; and if such 
person is unavoidably killed by the officer in such struggle, 
the killing is justifiable.' 2 

54. As to shooting at a fleeing person sought to be arrested. An 
officer attempting, with or without a warrant, to arrest a 
person for a felony , or to recapture a person escaping from 
such an arrest, may shoot at such person fleeing from arrest 
or recapture, if he can be taken in no other way. In any 
case, he should be called on to stop before being shot at, if 
within hearing. 3 

of arrest, violently resisted the arrest, it was in effect held to be law¬ 
ful for the officer to use force in return to make the arrest, and to de¬ 
fend himself from the attack of the offender, without notice to him 
of the cause of arrest, or of the abandonment of the attempt to make 
the arrest. Wolf v. State, above. 

The following temperate extracts from the Cincinnati Police Man¬ 
ual (containing cnieflv rules governing the police of that city) are 
worthy of consideration by all officers: 

“Everv policeman must recollect that, in making an arrest, he is 
not justified in doing more than is necessary for the safe custody of 
the prisoner while in his charge. It is the duty of a policeman to 
keep his prisoner safely, but he has no right to use unnecessary vio¬ 
lence, and must not use such language as would be calculated to pro¬ 
voke or exasperate him; such conduct tends io create resistance in 
the prisoner, and a hostile feeling among the bystanders toward the 
policeman.” 

“Policemen should not become offended at any harsh or abusive 
language that mav be applied to them, and should not make arrests 
in their own quarrels or those of their families, except under very 
grave circumstances—such as would justify them in using measures 
of self-defense.” 

1 See note to preceding paragraph. 

2 “The cases, where the prisoner is not to forfeitany goods or chattels, 
but is to be absolutelv acquitted, if he kills in his own defense: . . . 
4 An officer or bailiff that, in the execution of his office, kills a 
person that assaults him, though the officer gives not back to the 
wall, for the officer is under the protection of the law, and the books 
tell us it is not felony in such case. ... 5. The same law is of a 
constable that commands the king’s peace in an affray and is re¬ 
sisted. 6. He that kills a felon that resists, . . . and the like of a 
constable or watchman that is charged to take a person charged with 
felony, or attempts to take him upon hue and cry, if the person 
charged resist or fly, and can not be otherwise taken, though per¬ 
chance he be innocent, . . . and this either before or after arrest.” 
Hale’s Pleas of the Crown, 494; Murfree on Sheriff's, $1164. See also 
noxf llOtG. 

3 Chittv’s Crim. L. 62; Wolf v. State, 19 O. S. 248. 

In the case of State v. Belch, tried in the Hamilton County Court of 
Common Pleas, and intended to be a test case, in 1888, the defendant 


140 


CONSTABLES, MARSHALS, ETC. 


55. An officer attempting, with or without a warrant, to 
arrest a person for a misdemeanor, or a violation of a city or 
village ordinance, or to recapture a person fleeing from 
such an arrest, has no right to shoot at such a person, even 
though he can be taken in no other way, and has been 
called on to stop or he would be shot. 1 


Relating to Arrests in Civil Cases Only. 

56. No arrests in civil cases without writ. In civil actions, 
no lawful arrest can be made unless the writ commanding 
it be in existence ; and it ought to be in possession of the 
officer making the arrest. Such an arrest would not be 
made lawful by delivering to the officer a proper writ after 
the arrest. 2 

57. Where arrests may he made. The arrest may lawfully 
be made at any place within the township, and upon any 
river or water-course which divides the township from a 
neighboring state. 3 

58. As to breaking open doors, etc., to make arrest, see Chap¬ 
ter 24. 

59. As to who is exempt from arrest, in civil cases, see Chap- 
ter 23. 

60. Notice of arrest, in civil cases. The provisions in para, 
graphs 45-50, above, about notice of arrest, apply to civil 
cases, with this important difference, however, that many 
arrests can be made in criminal cases without warrant, 
while in civil cases no arrest can be made unless a writ 
therefor is issued before the arrest is made. Such parts of 

being a policeman of Cincinnati, indicted for manslaughter for shoot¬ 
ing a fleeing offender probably guilty of a misdemeanor. Judge S. R. 
Matthews, whose decisions were seldom questioned by the bar or 
reversed by the upper courts, in charging the jury, after able argu- 
mentby counsel, declared the law tobeas follows: (1) Thata policeman 
may arresta thief who has stolen goods in his possession, without wait¬ 
ing until a warrant has been sworn out, provided his information that 
the goods have been stolen is not mere hearsay. (2) A policeman 
may shoot at an escaping prisoner, provided the prisoner has been 
arrested for a felony, and it is absolutely necessary to shoot at him in 
order to prevent liis permanent escape. (3» A policeman has no 
right to shoot at an escaping prisoner who has been guilty of a mis¬ 
demeanor only. The defendant was convicted, and no effort was 
made to carry the case to a higher court. It was never reported, ex¬ 
cept in the local newspapers. 

These paragraphs. 54 and 55, are but the logical expression of the 
principles governing the use of force, given in paragraphs 51-53, 
slbove, as applied to the use of firearms as instruments of such force. 
They would apply equally as well to the use of a dagger, or lance, or 
other deadly weapon, under the same circumstances.— [Ed. 

In any case, a felon must not be killed in endeavoring to effect his 
arrest, if the officer can capture him without such severity, by obtain¬ 
ing assistance or otherwise, Williams v. State, 44 Ala. 41,* 

1 See note next above. ’ 

3 Hall v. Roche, 8 Term. 187: Bell v. Jacobs, 4 Bingh. 523. 

3 § 11756. 


ARRESTS, GENERALLY, ETC. 


141 


those provisions as apply to arrests under a warrant already 
issued apply to arrests in civil cases also. 

61. By whom arrest to be made. The officer, or deputed per¬ 
son to whom the order of arrest is directed, must be so far 
acting in the arrest, as to be engaged either at the place 
where the arrest is made, or elsewhere, in the endeavor to 
make the arrest. It is not necessary that the officer, or 
deputed person, should make the arrest, or even be within 
sight when the arrest is made ; he can not, however, go upon 
another business, or stay at home and send an unauthorized 
person to execute the order; but if engaged in efforts to 
arrest—as, for instance, if he leaves the place for the pur¬ 
pose of calling on the power of the county to assist him— 
he is constructively present, and the assistants he has left 
may make the arrest. 1 

62. Enticing into jurisdiction not allowed. Officers are not 
permitted to entice persons into a particular jurisdiction, 
by fraud, tricks, misrepresentation, etc., for the purpose of 
arresting them. Where, by false statement or fraudulent 
pretense, a party is brought within the jurisdiction, and 
there served with process, the service will be set aside. 2 

63. The officer should make reasonable search for goods, 
if there be a probability of finding any, before making the 
arrest. If, on inquiry of the defendant, he say he has no 
goods subject to levy, the officer will, so far as the debtor is 
concerned, be justified in making an immediate arrest, 
without further inquiry, unless he knows that the defend¬ 
ant is asserting a falsehood; for the plaintiff to the execu¬ 
tion is entitled to a levy on goods, if there be sufficient 
liable to the execution. 3 

64. If the defendant pays the amount due, or if he turns 
out personal property sufficient to pay the amount due and 
costs, the constable must not make the arrest; or, if the de¬ 
fendant does either, after the arrest and before being com¬ 
mitted to jail, the constable must discharge him. Property 
thus taken will be sold as upon other levies, and return 
made of the sale as in other cases.* 

65. If the debtor request it, the constable must take him 
before the commissioner of insolvents. If the com¬ 
missioner give the debtor a certificate for his discharge un¬ 
der the insolvent laws, the constable must then discharge 
him, and return, with the writ, a copy of the certificate. 5 

66. If the debtor already has such certificate, and shows 

1 Swan’s Treatise, 83, citing 7 Cow. 269; Comp. 65; 10 Johns. 85. 

2 See Carpenter v. Spooner, 2 Sandf. 717; Goupil v. Simonson, 3 Abb. 
Pr. 474; Seaver v. Robinson, 3 Duer, 622. 

3 Swan’s Treatise, (’hap. 23, $ 3. 

4 § 11750, and Swan’s Treatise, Chap. 23, § 3. 

5 § 11159. See also Ex varte Scott. 19 O. S. 581. 


142 


CONSTABLES, MARSHALS, ETC. 


it to the constable, he must make a copy of it, and discharge 
the debtor from custody. 1 

67. Escape and recapture. An escape is voluntary, when 
the officer permits the arrested person to escape; negligent, 
when the party escapes without the consent of the officer. 2 

68. The officer can be charged with an escape only when 
he has had the party actually in custody by lawful au¬ 
thority. 3 

69. In case of negligent escape, the debtor may be re¬ 
taken by the officer even on Sunday; and if immediately 
pursued, may be retaken in any other township or county. 
Such retaking, before suit against the officer, or the debtor’s 
voluntary return, relieves him from all responsibility. 4 

70. The officer may prove, in mitigation of the damages 
he becomes liable for from such escape, the insolvency of 
the judgment debtor. 5 

1 § 11174. 

2 Murfree on Sheriffs, $ 196; Swan’s Treatise, Chap. 23, $ 4 

3 Murfree on Sheriffs, $ 192; Swan’s Treatise, Chap. 23, § 4. 

Upon an order of arrest issued before judgment, and, it seems, by 
the statute, upon an order of arrest issued after judgment, the officer 
may permit the prisoner to go at large, provided he has him at the 
return of the writ; and as, under an order of arrest issued after judg¬ 
ment, the officer may thus, without fault, and after arrest, suffer the 
defendant to go at large before the return day. being only responsi¬ 
ble therefor in case he fail to have the money, or the person of the 
debtor in custody, at the expiration of the return day of the writ, it 
would seem to follow that the officer may, at any time before the re¬ 
turn day of the writ, but not probably afterward." retake a debtor who 
is at large by the voluntary permission of the officer. In this respect, 
therefore, the powers, duties, and responsibilities of an officer under 
an order of arrest issued after judgment, are precisely the same as 
upon an order of arrest issued before judgment. Swan’s Treatise, 
Chap. 23, § 1. 

4 4 Blachf. 193; 2 Conn. 473. 

6 Richardson v. Spenser, 6 O. 13; Hootman v. Schriner, 15 O. S. 43. 



PRIVILEGE FROM ARREST. 


143 


CHAPTER 23. 


PRIVILEGE FROM ARREST. 

In Criminal Cases. 

1. Who exempt from. No ambassador or minister accred¬ 
ited from a foreign power to the United States or to any 
other government, no member of the retinue, including do¬ 
mestics and domestic servants, of any such ambassador or 
minister, can be arrested, either with or without process, 
under any law or by any officer of Ohio or of any other 
state. Any such arrest would subject the officer or person 
making it to very severe penalties. 1 

In Civil and Criminal Cases. 

2. Who exempt — Exceptions. The following persons are 
privileged from arrest in both civil and criminal cases, as 
set forth below, except that these privileges do not apply to 
cases of treason , felony , or breaches of the peace? 

3. First. Members, clerks, sergeant-at-arms, door-keep¬ 
ers, and messengers of the senate and house of represent¬ 
atives of the State of Ohio, during sessions of the general 
assembly, and while traveling to and from such sessions, 
allowing one day for every twenty-five miles of the distance, 
by the route most usually traveled; and whoever arrests 
any such person in violation of this provision is liable to a 
fine of one hundred dollars, to be recovered by civil action, 
in the name and for the use of the person injured. 3 

4. Second. Electors, while going to, returning from, or in 
attendance at elections. 4 

5. Third. Judges of the courts, while attending court, 
and also during the time necessarily employed in going to, 
holding, and returning from the court which it is their duty 
to attend. 5 

6. Fourth. Attorneys, counsellors at law, clerks, sheriffs, 
coroners, constables, and criers, and all suitors, jurors, and 

1 See $$ 711, 4003, 4064, U. 8. Rev. Stat., and cases cited under them. 

5 See Const, of U. S., art. 1, sec. 6; Const, of Ohio, art. 2, sec. 12; 
art. 5. 5 3 ; § 11756, and statutes cited in following notes. 

;{ Const. Ohio, art. 2, § 12 ; § 11756. 

* Const. Ohio, art. 5, § 3 ; § 11756. 

s § 11754. 





144 CONSTABLES, MARSHALS, ETC. 

witnesses, while going to, attending, or returning from 
court. 1 

7. Fifth. Israelites, and such other persons as religiously 
observe the last or any other day of the week as a day of 
worship, on such day, within, going to, or returning from 
their places of worship, or during the time of service, and 
while going to or returning therefrom. 1 

8. Sixth. A person doing militia duty under the order 
of his commanding officer, or while going to or returning 
from the place of duty or parade. 1 

9. Seventh. United States senators and members of Con¬ 
gress, during their attendance at the session of their houses, 
and in going to and returning from the same. 2 

10. Eighth. Ambassadors or other public ministers of any 
foreign prince or state, authorized or received as such by 
the president of the United States; and also all domestics 
or domestic servants of any such public minister. 3 But 
this will not shield any citizen or inhabitant of the United 
States from arrest for any debt contracted before entering 
into the service of such minister; 4 nor does such exemp¬ 
tion from arrest apply to consuls or their servants. 5 * * 

11. Ninth. When and where arrests may not be made. No 
person can be arrested during a sitting of the senate or 
house of representatives, within the hall where such session 
is being held, or in any court of justice, during the sitting 
of such court, or on the first day of the week, commonly 
called Sunday, or on the fourth day of July. 9 

In Civil Cases. 

12. First. Females, and officers and soldiers of the revo¬ 
lutionary war, on any mesne or final process for any debt, 
claim, or demand arising upon contract. 1 

14. Third. Commissioned and non-commissioned officers, 
artificers, privates, musicians, seamen, and marines, enlisted 
in the service, or in the army of the United States, whether 
militia or of the regular army, are exempt, during their 
term of service, from arrest for any debt or contracts And 
no such non-commissioned officer, musician, or private, can 
be arrested or taken in execution for any debt under the 
sum of twenty dollars, contracted before enlistment, nor 
for any debt contracted after enlistment. 8 

1 § 11754. 

2 Constitution of U. S., Art. 1, § 6. 

3 U. S. R. S.. §§ 711, 4063. 

* U. S. R. S., § 4065. 

5 3 M. & S. 284. 

e IT. S. R. S., §§ 1237, 1610. 

s U. S. R. S:, § 1237. 

8 § 11755. 


PRIVILEGE FROM ARREST. 


145 


15. Fourth. An insolvent debtor, having a certificate of 
insolvency from the probate or common pleas court, or 
from a commissioner of insolvents, is free from arrest or 
imprisonment for any debt or demand mentioned in his 
schedule, except debts and demands for money or property 
received while acting in a trust capacity, such as a public 
officer, administrator, executor, guardian, etc. 1 

16. If such insolvent be arrested and produces.such cer¬ 
tificate, the arresting officer should take a copy thereof and 
release the insolvent. If not released under such circum¬ 
stances, the insolvent could hold the officer liable for dam¬ 
ages for not releasing him. 2 The officer should annex this 
copy to his return. See paragraphs 50-51, Chapter 25. 

General Provisions. 

17. Certain trustees, officers, etc., not to be arrested. Generally, 
no order of arrest can be issued against persons sued in 
their representative capacity, such as executors, adminis¬ 
trators, township trustees, officers of public or private cor¬ 
porations. 4 But if the writ does not disclose their repre¬ 
sentative character, the constable will not be liable should 
he arrest any of them. 5 

18. The officer may decline to arrest, if, before making the 
arrest, he is satisfied beyond any doubt that the defendant 
is privileged from arrest, and claims his privilege, in which 
case he must make return of the privilege. 4 See, for in¬ 
stance, paragraph 16. 

19. A person too sick to be removed is usually not arrested 
while such removal would endanger his life. See further 
as to this, paragraph 20 of Chapter 25. 

20. What arrests lawful. All arrests, not contrary to the 
provisions herein contained, made in any place, or on any 
river or water-course within or bounding upon this state, 
are lawful. 6 

1 §§ 11160, 11175. 

When a discharge has been obtained in another state under insol¬ 
vent laws which exempt the person from imprisonment, but leave 
the future acquisitions of the debtor (as in Ohio) liable to execution, 
it will not protect the debtor from arrest and payment of the debt 
here. But if the insolvent laws of another state not only discharge 
the debtor from imprisonment, but also discharge the debt itself, 
then he can not be arrested here upon the debt, nor can payment be 
enforced. Swan’s Treatise, 67, 68, citing 2 Cow. 626; 1 Ohio, 236; 

2 Conn. 633 ; 12 Johns. 142. 

2 §§ 11160, 11163. 

* Swan’s Treatise, Chap. 10, § 11. 6 See par. 28, Chap. 5. 

6 § 11756. If, during a session of the general assembly, a member or 
officer thereof be arrested upon a charge of treason, felony, or breach 
of the peace, notice thereof must be given forthwith to the body 


146 


CONSTABLES, MARSHALS, ETC. 


21. How and when prisoner may he discharged. A person 
arrested contrary to the provisions of this chapter must 
be discharged by a writ of habeas corpus, or in a summary 
way, by motion before the court from which the process is¬ 
sued, at the cost of the party who sued out the process. 1 

22. Privilege must he claimed . This privilege from arrest is 
a privilege which the person arrested, or about to be ar¬ 
rested, must claim if he wants it. If he neglects to claim 
it, or waives it, he stands on the same footing as a person 
not entitled to the privilege. 2 

23. Not officer's duty to decide about it. The very general 
rule is, that the officer making the arrest under process 
regular on its face, and issued by a court of competent 
jurisdiction, has nothing to do with deciding whether or 
not the arrested person is entitled to this privilege. That 
is a question for a court to decide, and the person arrested 
must get the court to decide it by asking for a writ of habeas 
corpus, or by a motion made to the court. 3 The arresting 
officer has nothing to do with that motion or habeas corpus. 
He is a ministerial, not a judicial officer, and his duty is to 
obey the writ directed to him, if it be regular on its face, 
and arrest the person named therein, and take him before 
the judicial officer who issued it, where the arrested per¬ 
son can apply or arrange for his discharge, if entitled 
thereto. 4 

24. The exception to this course is where the person 
whose arrest is ordered has documentary evidence in his 
possession showing that he is exempt from arrest, as in 
case of an insolvent having a certificate, as specified in par¬ 
agraph 15, above; and where the arrested person is too 
sick to be removed, as stated in paragraph 20 of Chapter 25. 


with which he is connected, by the officer who issued the process 
upon which the arrest is made. § 13505. 

1 § 11757. 

2 See Gill v. Miner, 13 O. S. 182; lb. 200. 

In deciding that case of Gill v. Miner (page 200), the court say: “ It 
will be observed that the statute denominates these exemptions privi¬ 
leges from arrest. Such we think they are. Privileges—personal 
privileges-privileges personal to the person arrested, which he may 
waive or insist upon as he may choose; and with which the officer 
making the arrest, under process regular on its face, and issued by a 
court of competent jurisdiction, has nothing to do, except to obey 
such process until it is superseded by an order of paramount author¬ 
ity; and to see to it that the prisoner is furnished with reasonable fa¬ 
cilities to apply for his discharge on habeas corpus or on motion.” 

Where a sheriff is sued for an escape, on an execution, he can not 
plead in defense that the defendant to the execution was a suitor at 
a court on the day of his arrest, and was, therefore, privileged from 
arrest. The sheriff should have required the defendant to the 
execution to have obtained his discharge by a habeas corpus. Ib. 182 

3 See note last above. 

4 8ee pars. 4 of Chap. 3; 26-28, Chap. 5. 


FORCIBLY ENTERING HOUSES, ETC. 


147 


CHAPTER 24. 

AS TO FORCIBLY ENTERING HOUSES, BREAKING 
DOORS, ETC., TO SERVE WRITS, MAKE AR¬ 
RESTS, ETC., IN CIVIL AND CRIMINAL CASES. 

General Rule. 

1. A person's house is his castle. It is a principle of law 
that a person’s dwelling-house is his castle, and that there¬ 
fore, if its outer door be shut, it protects, from all legal pro¬ 
cess therein, himself, his children, his domestic servants, 
his permanent boarders, and all others who are a part of 
his family or who have made his house their home ; 1 and 
perhaps even his mere guest; 2 and even an officer has no 
right to open, nor to break open, such door, even if he first 
ask for admittance and it be refused him ; and merely lift¬ 
ing the latch is, for this purpose, as much a breaking as 
forcing a door bolted with iron. 3 

2. This rule does not apply to barns , vacant houses, etc. The 
privilege allowed a dwelling does not extend to a barn or 
warehouse disconnected from it, and forming no part of the 
inclosed space around the house. They may be broken 
open to make service of process, either on the body or 
goods. 4 

3. Dwelling-house used fraudulently to cover property 
from execution, or a vacant house, so used, may be lawfully 
broken open, without demand of entry, to levy on such 
goods placed there. 3 The officer will be liable for unneces¬ 
sary damage done in entering. 6 

In Criminal Cases. 

4. Officer may break outer doors, etc., to execute warrant. The 
statute provides that in executing a warrant for the arrest 

i 

1 See Semayne’s Case, 5 Coke, 92; Lee v. Gansell, 1 Cowp. 1; Walker 
v. Fox, 2 Dana, 404; Oystead v. Shedd, 13 Mass. 520; Curtiss v. Hub¬ 
bard, 1 Hill (N. Y.), 336. 

2 1 Hill, 336, above; but see 13 Mass. 520, above. 

3 1 Hill, 336, above; 2 Dana. 404, above. 

* Burton v. Wilkinson, 18 Vert. 186, 

6 Stitt v. Wilson, Wright, 505. 

• lb. See also par. 19 this Chap. 


148 


CONSTABLES, MARSHALS, ETC. 


of a person charged with an offense, or a search-warrant, 
the officer may break open any outer or inner door or 
window of a dwelling-house or other building, if, after 
notice of his office and purpose, he be refused admittance; 
but this is not intended to authorize any officer executing 
a search-warrant to enter any house or building not de¬ 
scribed in the warrant. 1 

5. And before warrant issues, when. When an officer im¬ 
mediately pursues a person who has committed a felony, Or 
who is reasonably suspected of having done so, it is the 
officer’s duty to follow such person wherever he may go, 
and if he takes refuge in any house or building, the officer, 
after stating his office and object, and demanding admis¬ 
sion, and admission being refused, may forcibly open the 
outer door or windows, enter the house or building, and ar¬ 
rest the offender. 2 

6. Forcibly opening an outer door is generally a violent 
and dangerous proceeding, and should be done only in ex¬ 
treme cases, and when an immediate arrest is necessary. 
But when necessary, it should be done promptly rather 
than let the offender escape 

7. In case of misdemeanors. It will be noticed from para ¬ 
graph 4 above, that “ in executing a warrant for the arrest 
of a person charged with an offense ,” whether it be a misde¬ 
meanor or a felony, the officer may break open any door. 
But if the officer is pursuing, without a warrant, an offender 
guilty, or reasonably believed to be guilty, of a misde¬ 
meanor, and he takes refuge in his home, the officer should 
demand admittance, state his office and object, and if he 
be then denied admittance, he may break open the outer 
door. 2 

8. As to inner doors, see paragraph 17-19, below, applicable 
here also. 

In Civil Cases. 

9. An officer holding an execution for goods, or a sum¬ 
mons, or an order of arrest for a person, in a civil case, has 
no right to enter the dwelling-house of the defendant to 
serve such writ if its outer door be closed. 3 

10. If, however, the officer had, in arresting a defendant, 
succeeded in touching him, and he had fled into his house 
or into the house of another, the officer could break down 
the outer door or window, if necessary, to complete his 

i§ 13504. 

2 See Murfree on Sheriffs, §§ 156, 1163, and cases there cited. 

3 See authorities in note 1 to par. 1 this Chapter. Also Chitty Crim¬ 
inal Law, 61; Hale’s Pleas Crown, Chap. 19, § 12; Clark v. Cleveland 
6 Hill. 344 ; Gano v. Hall, 42 N. Y. 67 ; Butt v. Jones, 1 Neil Gow. 
N. P. 99. 


FORCIBLY ENTERING HOUSES, ETC. 


149 


arrest and carry off bis captive, if he first states what 
officer he is, and his object, and demands admittance, and 
this is refused him. 1 

11. And if the service of a writ of execution has once 
properly commenced, and the defendant shut up the goods 
in his dwelling, the officer may, after making the state¬ 
ments and demand above mentioned, force outer doors to 
complete his levy. 2 

12. If the officer find the outer door open, or if he knock 
at it when shut and he is asked to walk in, he may law¬ 
fully enter the outer door, 3 even if he gain peaceable entry 
by false pretenses. 4 

13. After a party has once been actually arrested and 
escapes from custody, the right of the officer to break open 
doors and windows, after notice of his office and purpose, 
still continues. 5 

14. An officer can not break the outer door of a person 
not a party to the suit, to make such arrest or levy, when 
the defendant, or his goods, are in such house without in¬ 
tention of avoiding the writ. But if the defendant flee to, 
or conceal his goods in the house of another, to avoid the 
process, or if the owner of the house purposely secrete the 
defendant or his goods there, the outer door may be broken 
open after demand for admission has been made and re¬ 
fused. 6 

15. But, in such case, the officer should be quite sure 
that the person or goods sought are in the house of a 
stranger to the writ, before he breaks into it, or if, being 
lawfully inside, he breaks down inner doors; for, it is only 
if such person or goods are there that he is justified in so 
doing. If not found there, the officer is liable as a tres¬ 
passer, however just the grounds for believing that they 
were there; and the damages awarded against him w'ill be 
nominal, or compensating, or vindictive, according to the 
circumstances of the case. 7 

16. If an officer breaks open an outer door when he is 
not justified in so doing, he is liable to an action, and the 
arrest or levy will be void. 8 

i3 Blackst. Com. 288, Sandon v. Jervis. 4 Jurist. (N. S.) 737? 
Semayne’s Case, 5 Coke, 92; Johnston v. Leigh, 6 Taunt. 246; Cooke v. 
Birt. 5 Taunt. 765 

The house of anv one is not a castle or privilege, but for himself, 
and shall not extend to protect any person who flies to his house.” 
Semayne’s Case, above. 

2 Glover v. Whittenhall, 6 Hill, 597. 

3 Munfree on Sherhrs, $ 157. 

4 Rex v. Backhouse, Lofft. 61. 

6 chi'ty Crim. Law, 58; Swan’s Treatise, 865. 

• Burton v. Wilkinson. 18 Ver. 186; 16 Pick. 553; lb. 156. 

J Johnston v. Leigh, 6 Taunt. 246; Curtiss v. Hubbard, 1 Hill, 338.; 
Morrish v Murray, B Mees. & W. 52. 

a 12 Pick, 270 ; 24 Wend. 369. 



150 


CONSTABLES, MARSHALS, ETC. 


17. .4s to breaking inner doors, etc. Having lawfully passed 
through the outer door, the officer may lawfully break 
through any inner door, or into any closet, trunk, or other 
hiding place, in his search for either the person or the 
goods he is seeking; and it has been held that he need not 
first demand admittance through such inner doors, etc., if 
he has reasonable ground to suspect that such person or 
goods are within, and the circumstances show that a de¬ 
mand of admittance would not probably be complied with. 1 
But as an officer is never justified in doing mere wanton 
damage, he should, in all practicable cases, first ask ad¬ 
mittance before forcibly he breaks such doors, etc. 

18. What is an inner door? When the entire house is let 
out in lodgings to different persons, and has but one com¬ 
mon door of entrance, every separate apartment, or suite of 
apartments, is the dwelling-house of its or their occupants, 
and must be so respected.' 2 But if the landlord occupies a 
part of such house, though he have but a single room, he 
is in law the occupant of the whole house, and a legal en¬ 
trance by the outer door insures a legal entry to all the 
rooms of the house. 3 

19. Some houses are so constructed as to be occupied by 
either one or two families, having two doors opening on the 
street, and a door communicating between the separate 
compartments. If such a house is occupied by two per¬ 
sons, against one of whom process is held, the officer hav¬ 
ing gained access to the house through the outer door of 
the other, can not force the door between the compart¬ 
ments, unless it has been of common use and passage at 
the pleasure of both, either to go out of the house, or as a 
way to the interior. If it has so been used, however, it may 
be forcibly entered to make the arrest or levy. 4 

20. No unnecessary damage should ever be done in effecting 
any such forcible entry. If an officer breaks open a house, 
when he could have entered by means of a key, an action 
will lie against him as a trespasser. 5 If the first entry was 
accomplished by craft, and then used to effect the violence 
intended, the first entry is unlawful, and the officer liable 
for any outrage committed in executing the process. 6 

1 See Semavne’s Case, 5 Coke, 92; Ratliffe v. Burton, 3 Bos. & P. 233; 
4 Taunt 620; 16 Johns. 288. 

2 Lee v. Gan sell, 1 Comp. 1; Williams v. Spencer, 5 Johns. (N. Y.) 
352; Fitch v. Loveland, Kirby (Coun.) 386; 1 Leach, 80, 237, 427. 

3 9 B. & C. 185 

4 Stedman v. Crane, 11 Mete. 295. 

6 Dalton, 354. See also par. 2 above. 

6 Hob. 62, 263. See par. 16, p. 149. 


ARREST IN CIVIL CASES BEFORE JUDGMENT. 151 


CHAPTER 25. 


ARREST IN CIVIL CASES BEFORE JUDGMENT. 


1. Imprisonment for debt has long been abolished in 
Onio; bat in some cases in which fraud and debt are com¬ 
bined, the creditor who has brought suit against the debtor 
to secure payment of the debt may, in that suit, have the 
debtor arrested for some fraud he has committed or tried to 
commit to the injury of the plaintiff. The proceedings re¬ 
lating to such arrest are not a separate suit, but are inci¬ 
dental to or a part of the civil suit for the recovery of the 
debt, and are as follows: 

2. For what causes order of arrest issued, and the affidavit. 
An order for the arrest of the defendant in a civil action 
must be made by the justice of the peace before whom that 
action is brought, when there is filed.in his office an affidavit 
of the plaintiff, his authorized agent, or attorney, made be¬ 
fore any person authorized by law to administer oaths, stat¬ 
ing the nature of the plaintiff’s claim, that it is just, the 
amount thereof as near as may be, and establishing one or 
more of the following particulars: First. That the defend¬ 
ant has removed or begun to remove any of his property 
out of the county with intent to defraud his creditors. 
Second. That the defendant has begun to convert his prop¬ 
erty or any part thereof into money for the purpose of de¬ 
frauding his creditors. Third. That he has property or 
rights in action which he fraudulently conceals. Fourth. That 
he has assigned, removed, or disposed of, or has begun to 
assign, remove, or dispose of his property, or any part 
thereof, with intent to defraud his creditors. Fifth. That 
the defendant fraudulently or criminally contracted the 
debt or incurred the obligation for which suit is about to be 
brought. Sixth. The affidavit must also contain a statement 
of the facts claimed to justify the belief in the existence of 
one or more of the above particulars. 1 

3. A statement of facts to justify belief is essential. No right 
to issue such an order of arrest exists at all, unless the affi 

i § 10247. 

No person shall be imprisoned for debt, in any civil action, on 
mesne or final process, unless in cases of fraud. Constitution of Ohio, 
art. 1, sec. 15. 


152 


CONSTABLES, MARSHALS, ETC. 


davit for the order contains a statement of the facts claimed 
to justify the belief in the existence o f the particular fraudu¬ 
lent act; and an order which is issued on an affidavit which 
does not contain such statement, is void for want of legal 
authority in the justice to issue it, and an arrest undeT it 
is illegal. 1 

4. A statement of facts in the affidavit which have a legal 
tendency to induce such belief, though such facts be slight 
and inconclusive, will nevertheless sustain such order until 
it is set aside or reversed ; the issuing an order under such 
circumstances is a mere error in judgment. 1 

5-10. Form of affidavit for order of arrest before judgment 
should be substantially as follows: 

E. F., Plaintiff, | Before C. D., a justice of the peace 
v. j- in and for - township,-- 

G. H., Defendant. J county, Ohio. 

The affiant, E. F., makes oath that-is the plaintiff [or, 

agent; or, attorney for E. F., plaintiff] in the premises; that 
the claim in the above named action is for [ here is stated the 
nature of plaintiff’s claim, for instance, labor done for the de¬ 
fendant, at his request, etc., as may be]. 

And the deponent also makes oath that said claim is just, 
and that there is due and unpaid thereon [ state how many ] 
dollars. 

Said deponent also makes oath that, as he verily believes, 
the said defendant j [here are stated one or more of the particu¬ 
lars mentioned in paragraph 2 above, as, for instance, has re¬ 
moved; or, begun to remove his property out of the county 
with intent to defraud his creditors]. 

The said deponent further makes oath that the grounds 
of that belief, being facts within his own knowledge, and 
information from others which he believes to be true, are 
in substance as follows: [here are stated facts, etc., which lead 
to the belief that defendant is guilty of the fraud charged. See 
paragraphs 3, 4]. E. F. 

Sworn to and subscribed before me, this 20th day of May, 
a. d. 19—. C. D., Justice of the Peace. 

11. When o>der may issue. The order of arrest may be 
made to accompany the summons, or may be issued at any 
time afterward before judgment. 2 

12. Undertaking of plaintiff. The order of arrest can not 
legally be issued by a justice of the peace until there has 
been executed by the plaintiff, if a resident freeholder of 
the township where suit is brought, otherwise by one or 
more sufficient sureties of the plaintiff, a written undertak¬ 
ing, in not less than double the amount of the plaintiff’s 
claim, as stated in the affidavit, to the effect, that the plaint* 


1 Spice v. Steinruck, 14 O. S. 213. 


2 § 10248. 


ARREST IN CIVIL CASES BEFORE JUDGMENT. 153 


iff shall pay the defendant all damages which he may sus¬ 
tain by reason of the arrest, if the order be wrongfully ob¬ 
tained. 1 

13. What order for arrest must contain , and to whom delivered. 
The order of arrest must be addressed and delivered, 
with a copy of the affidavit, to a constable of the proper 
township; it must state the names of the parties, the 
amount of the plaintiff’s claim specified in the affidavit, be 
signed by the justice of the peace issuing it, and must re¬ 
quire the constable to arrest the defendant and bring him 
forthwith before said justice. 2 

14. It will be noticed that, in this case, the magistrate 
makes a copy for the ministerial officer to use. But it is 
not a copy of a writ in the hands of the latter officer, so 
that the remarks about making copies, found in paragraph 
14 of Chapter 3, do not apply. 3 

15. The form of the order of arrest , returns thereon , etc., will be 
found below in this chapter. 

16. How order of arrest executed. The officer receiving that 
order of arrest, must execute it by forthwith arresting the 
defendant, and delivering to him a copy of the order of ar¬ 
rest, and the copy of the affidavit mentioned above.* 

17. As to how arrests are made, and many important mat¬ 
ters connected therewith, see Chapter 22. 

18. The arrested person may, after arrest, at once secure his re¬ 
lease, by paying, or causing to be paid to the arresting offi¬ 
cer, or plaintiff, the claim of the plaintiff as specified in the 
affidavit, and the costs of suit, as indicated in the next para¬ 
graph. 

19. Arrested person to he taken before magistrate, etc. Unless 
the claim of the plaintiff specified in the affidavit and costs 
of suit are paid, or unless discharged from custody by order 
of the plaintiff, the defendant so arrested must be taken by 
such constable forthwith before the justice of the peace by 
whom said order of arrest was issued ; and kept in custody 
until discharged by law. 5 

1 § 10249. 2 § 10250. See next note. 

3 In other words, the magistrate who issues the order of arrest gives 
it, and the copy of, the affidavit mentioned in paragraphs 1 to 10 
above, to the arresting officer. This latter officer must make a copy 
of the order of arrest, but not a copy of the affidavit, to be given to 
the person arrested. 

* § 10251. 

* § 10251. 

“The officer, after the arrest, may, at his own risk, permit the defend- 
and to go at large for a period of time which will not materially de¬ 
lay taking him before the justice. For. all hough the law requires the 
defendant to be taken before the justice forthwith after the arrest, a 
delay of an hour or more could not be deemed unreasonable; and if 
the defendant was arrested in the night, it would be proper for the 
constable to hold him in custody until the morning, and then take 
him before the justice. There should not, however, be any unneces- 


154 


CONSTABLES, MARSHALS, ETC. 


20. The arresting officer will be excused from producing the de¬ 
fendant , if the latter be so sick that removal would endan¬ 
ger his life, or if he be rescued from the officer by superior 
force under circumstances not showing negligence on the part 
of the officer. 1 In case of such sickness, the officer should 
protect himself by a physician’s certificate to the effect 
that such sickness exists. See pars. 44-45. 

21. The form of the order of arrest , if issued as a separate 
writ, either accompanying the summons, or afterward, may 
be as follows: 

22-23— 

The State of Ohio,-county,-township, ss. 

To A. B. [or, To any], constable of said township: 

You are hereby ordered to arrest G. H., and bring him 
forthwith before me, C. D., a justice of the peace of said 
township, at my office, to answer the action of E. F. against 
said G. H., pending before me, in which the said E. F. 
claims [insert amount stated in the affidavit] dollars; and have 
then and there this order. 

Witness my hand, this - day of -, a. d. 19 — . 

C. D., Justice of the Peace [or, Mayor.] 

26. Or said order may, in that case, be the same as the 
next form, omitting the words “ and that at the time of the 
arrest of the said G. H., you summon him to appear at 
once before me, the said justice, at my office in the afore¬ 
said township.” 

27. Form of order of arrest with summons. Frequently, when 
the order of arrest, and the summons in the action, are 
issued at the same time, they are united into one writ, which 
may be in form as follows: 

28-33- 

State of Ohio,-county,-township, ss. 

E. F., Plaintiff, 1 

v. > Order of arrest, with summons. 

G. H., Defendant. J 

To any constable of said township, greeting* 

You are hereby required to arrest the said defendant, G. 
H., and him bring forthwith before me, C. D., a justice of 
the peace within and forthe township aforesaid, at my office 
therein, and that at the time of the arrest of the said 
G. H.. you summon him to apppear forthwith before me, 
the said justice, at my office in the aforesaid township, to 
answer the action of said plaintiff, E. F., who claims of 
the said defendant in said action now pending before me, 
the sum of $-for labor done for said defendant, at his 

sary delay in taking the defendant, as soon as it can be reasonably 
done, before the justice.” Swan’s Treatise, Ch. 10, $8. 

1 3 Eng. C. L. 179; 6 Eng. C. L. 425; Cro. Jac. 419; 8 East. 171; 1 B. <fc 
Aid. 190; 1 Stra. 432. 


ARREST IN CIVIL CASES BEFORE JUDGMENT. 155 


request [etc., as may be~\. And of this writ make legal serv¬ 
ice, and return the same to me, according to law. 

Given under my hand, this 20th day of May, a. d. 19—. 

C. D., Justice of the Peace. 

34. Certificate on the copy. On the copy delivered to de¬ 
fendant, the officer should make the following certificate: 
35— 

I certify that the within and foregoing is a true copy of 
the original writ, and of the indorsements thereon. 1 

A. B., Constable [or, Marshal, etc.]. 

36. Items of arresting officer's fees must be indorsed on 
the writ, substantially as follows (see paragraphs 36, 37, of 
Chapter 5): 

Service and return of summons. $ 

Copy. 

Service and return of order of arrest. 

Copy. 

Service of copy of affidavit. 

Mileage,-miles. 


Total. $ 

37. Form of “ return ” on the writ. A return must be in¬ 
dorsed on the writ, stating what the officer did. It will 
generally be somewhat as follows: 

38-40— 

On [state what day, etc.'], I took the body of the within G. 
H., and delivered to him a copy of this order, and the copy 
of affidavit received herewith from the justice of the peace 
[or, mayor, etc.]. A. B., Constable [or, Marshal, etc.]. 

41-42. Or as follows: 

The within named defendant not found. 

A. B., Constable. 

43. Other forms of return must be adopted when the cir¬ 
cumstances require it, as, for instance: 

44-45. Form when defendant is too sick to arrest. 

I proceeded forthwith to the residence of the said G. H., 
for the purpose of arresting him. He was then, and still 
remains, so sick and inferm, that without endangering his 
life I can not arrest him as l am commanded within, as will 
further appear from physician’s certificate hereto attached. 

A. B., Constable. 

46 - 47 . Form, when defendant becomes sick after arrest, and be¬ 
fore return, day. 

Arrested tlie within named G. H., who remains under my 
custody, so ill and infirm, that without great peril and prob¬ 
able danger of his life, I can not have his body before the 

1 If the order of arrest contain no summons, the words “ and fore¬ 
going and of the indorsement thereon” maybe omitted from this cer¬ 
tificate. 









156 


CONSTABLES, MARSHALS, ETC. 


court within named, as I am herein commanded as further 
appears from physician’s certificate hereto attached. 

A. B., Constable. 

48-49. Form when defendant is privileged from arrest. The 
within named G. H., at the time of the delivery of this or¬ 
der to me, and from thence hitherto, has been and still is 
[state the ground of exemption , as, for instance , a juror serving 

in the Court of Common Pleas of -county]. Therefore 

I did not arrest him as within I am commanded. 

A. B., Constable. 

50-51. Form when defendant is discharged by commissioner of 
insolvents. 

On-■, 19—, I duly arrested the within named G. H., 

and delivered to him personally a copy of the within order 
and copy of the affidavit received herewith from the justice 
[or, mayor], and thereupon, at his request, I took him 

before the commissioner of insolvents of -county, Ohio. 

And then the said G. H. produced to me the certificate of 
said commissioner, a copy of which is herewith returned. 
In obedience with said certificate, I discharged the said 
G. H. from custody. A. B., Constable. 

52-53. Form when one defendant is found and another not. 

On-, 19—, I took the body of the within named G. H. 

and delivered to him a certified copy of the within writ, 
and the copy of the affidavit received herewith from the 
justice of the peace. The within named R. X. not found 
within my jurisdiction. A. B., Constable. 

54-55. Form token defendant is released by order of 
plaintiff. 

On-, 19—, I took the body of the within named G. H. 

and delivered to him a certified copy of this writ, and the 
copy of the affidavit received herewith from the justice of 
the peace. But said G. H. was since discharged by me 
from custody by order of the within named plaintiff, E. F. 

A. B., Constable. 

56-59. Form when defendant is discharged by habeas 
corpus. 

On-, 19—, I took the body of*the within named G. H. 

and delivered to him a certified copy of this writ, and the 
copy of the affidavit received herewith from the justice of 

the peace. Afterward, on-, 19—, by virtue of a certain 

writ of habeas corpus to me directed, 1 conveyed the said 
G. H. before the Hon. S. M., in said writ named, judge of 
[state what court], who, upon examination into the cause 
of the arrest and detention of said G. H. upon the within 
order forthwith discharged the said G. H. therefrom, as will 
appear by the order of the said judge hereto annexed. 

A. B., Constable. 

60. Return to the justice of the peace with the order of 
arrest a copy of the judge’s order of discharge. 







ARREST IN CIVIL CASES BEFORE JUDGMENT. 157 


61-62. Form when defendant escapes after arrest. 

On-, 19—, I took the body of the within named G. H. 

within my bailiwick, and delivered to him a copy of this 
order and the copy of affidavit received herewith from the 
justice of the peace. But afterward the said G. H. with 
force and arms rescued himself out of my custody, and ever 
since then the said G. H. has not been, nor is he now', 
found within my jurisdiction. A. B., Constable. 

63-64. Form when defendant is rescued hy others. 

On -, 19—, I took the body of the within named 

defendant, G. H., and gave him a copy of this writ and the 
copy of the affidavit received herewith from the justice of 

the" peace. But afterward, on -, 19—, one L. M. and 

N. 0. and others unknown to me with force and arms 
assaulted me, and rescued the said G. H. out of my custody, 
and the said G. II. with force and arms rescued himself, 
and escaped out of my custody, and afterward, and since, 
the said G. H. not found in my jurisdiction. 

A. B., Constable. 

65. As to return of summons. When an order of arrest is 
issued in a case, the ministerial officer should make return 
of the summons at the same time he makes return of the 
order of arrest, so that the trial may then proceed, even if 
the summons commands its return to be made at a later 
day. 

66 . Proceedings after arrest; prisoner must he released after 
forty-eight hours, unless. Upon the return of said order of ar¬ 
rest, so executed, the trial of said cause must proceed, un¬ 
less for good cause shown, upon the application of either 
party, or at the instance of the justice himself, it be con¬ 
tinued for any period, as is provided for in other cases be¬ 
fore justices of the peace; and when the trial of said cause 
is continued for any period, the defendant, upon executing 
with one or more sufficient sureties, a written undertaking 
to the plaintiff in the premises, and to the acceptance of 
the justice, to the effect that if judgment shall be rendered 
in the action against the defendant, he will render himself 
amenable to the process of the court thereon, must be dis¬ 
charged from custody. But in no case can the defendant be 
detained in the custody of the officer when said continu¬ 
ance has been lor more than forty-eight hours, unless said 
continuance has been made at the instance or with the con¬ 
sent of the defendant himself. 1 

i § 10252. 

“If the defendant is brought before the justice under an order of 
arrest, and declines either to give an undertaking as within men¬ 
tioned, or to make a deposit of money with the justice, the effect of 
an adjournment of the cause beyond the period of forty-eight hours 
from the time the defendant is brought before the justice (unless 
done at the instance or with the consent of the defendant), will be 
to discharge the defendant from custody; for the statute provides, 
‘that in no case shall the defendant be detained in the custody of 
the officer, when the continuance has been for a period beyond forty- 





158 


CONSTABLES, MARSHALS, ETC. 


67. The constable or marshal have nothing to do with 
the preparation or giving of this undertaking. 

eight hours, unless said continuance has been made at the instance, 
or with the consent of the defendant himself. 

“If the continuance is beyond forty-eight hours at the instance or 
with the consent of the defendant, he remains in the custody of the 
officer until the trial; unless he makes a deposit of money, or causes 
an undertaking to be entered into, as before mentioned. If the con¬ 
tinuance is beyond forty-eight hours without the consent of the de¬ 
fendant, and the defendant is discharged from custody on that ac¬ 
count (he having given no undertaking and made no deposit), the ac¬ 
tion will proceed to trial and judgment, or be adjourned for trial, as 
if no order of arrest had been issued. 

“If the defendant gives the undertaking, or makes the deposit, the 
action may be adjourned and tried as in other cases. 

“It will then be observed that a defendant, in custody upon an order 
of arrest, issued before judgment, may insist: 

“1. Upon giving the undertaking, of making the deposit of money 
above mentioned. If either be done, he must be discharged from 
custody; and then the action maybe adjourned for like period, and 
upon like showing, and either party may have a trial under like cir¬ 
cumstances as if no order of arrest had been issued, and the action 
was proceeding on the summons. 

“2 If no undertaking is given, or deposit made, the defendant may 
insist that the trial shall not be adjourned beyond forty-eight hours'. 
If it is, without his consent, he must be discharged from custody; 
and if so discharged, the action proceeds to trial, or adjournment, 
etc., as if no order of arrest had been issued.” Swan’a Treatise. 
Chap. 12. 


ARREST IN CIVIL CASES AFTER JUDGMENT. 159 


CHAPTER 26. 

ARREST IN CIVIL CASES AFTER JUDGMENT. 


1. The statements in paragraphs 3 and 4 of Chapter 25 
apply as fully to this chapter as to that one. Read them, 
and also all of Chapter 22. 

2. After a judgment has been obtained against the de¬ 
fendant, in a civil suit before a justice of the peace, if then 
the defendant is in the custody of the officer, upon an order 
of arrest before judgment, or if, after judgment against 
him, there is filed in the office of such justice an affidavit 
of the plaintiff, his authorized agent, or attorney, made be¬ 
fore any person competent to administer an oath, stating 
the amount of said judgment remaining unpaid, and estab¬ 
lishing one or more of the particulars specified for order of 
arrest before judgment, said justice of the peace must, un¬ 
less otherwise ordered'by the plaintiff, issue an execution, 
and accompany the execution with an order for the arrest 
of the defendant. 1 

3-10. Affidavit for order of arrest after judgment. 

E. F., Plaintiff, ] Before C. D., a mstice of the peace 

v. V in and for- township,- 

G. H., Defendant. j county, Ohio. 

The affiant, E. F., makes oath and says that he is the 
plaintiff [or, the agent or attorney of the plaintiff] in the 

premises; that on or about the - day of -, a. d 19— , 

said E. F. recovered a judgment against the said G. H. be¬ 
fore C. D., a justice of the peace in and for said township, 

in said county, for the sum of -dollars and -cents, 

of which amount there is still due the sum ot $-, and 

for which the said E. F. is entitled to execution; the said 
judgment being in full force for that amount yet unpaid. 

Said deponent also makes oath and says that, as he verily 
believes, the said defendant [here state the particular or fraud , 
ns in the affidavit in paragraph 2 of Chapter 25]. 

The said deponent further makes oath and says that the 
grounds of that belief, being facts within his own knowl¬ 
edge, and information from others, which he believes to be 
true, are in substance as follows: [here state facts inducing 
belief , as in the affidavit last mentioned.'] E. F. 


i § 10425. 



160 


CONSTABLES, MARSHALS, ETC. 


Sworn to and subscribed before me, this-day of-, 

A. d. 19—. C. D., Justice of the Peace. 

11. The order of arrest. Said order of arrest must be ad¬ 
dressed and delivered, with a copy of the affidavit, to the 
constable having said execution, and must state the names 
of the parties, be signed by the justice issuing it, and state 
the amount of the judgment and costs unpaid; and must 
require the officer, in case the said judgment and costs 
shall not be paid, or an amount of property of the defend¬ 
ant whereon to levy execution sufficient to satisfy the same, 
can not be found in his township, to arrest the defendant, 
if not already in the custody of the officer, and deliver him 
to the sheriff of the proper county, to be committed by 
him to the jail of the county, and kept in custody until 
discharged by law. But no such order of arrest can be is¬ 
sued until the undertaking required for order of arrest be¬ 
fore judgment shall have been executed. 1 See paragraph 
12 of Chapter 25, as to such undertaking. 

12. A constable may, at his peril, omit to arrest a debtor, 
or, after arrest suffer him to go at large before the return 
day, subject only to his liability for an escape, or for omit¬ 
ting to arrest, if he fail to have either the money or the 
person of the debtor in custody at the expiration of thirty 
days. 2 But the officer is liable to the execution creditor if 
he (the officer) fails to arrest and commit to jail the debtor 
within thirty days. 3 

13. Therefore, if the officer could have arrested the debtor 
by being reasonably diligent, and does not have him in 
custody at the expiration of thirty days, he is liable, in an 
action for damages, to a verdict for at least nominal dam¬ 
ages and costs, even if no actual damages have accrued 
from Such neglect. He should therefore execute the order 
immediately after receiving it. 4 

14. Various other provisions , found in other chapters, are as 
fully applicable to this chapter as if here repeated. Among 
these are paragraph 14 of Chapter 25; paragraphs 5 to 21, 
especially paragraph 9, Chapter 5, as to service of writs, etc.; 
Chapter 22, as to arrests, and how made, etc.; Chapter 24, as 
to breaking doors; Chapter 23, as to privilege from arrest- 

15-20. Form of order of arrest after judgment. 

The State of Ohio,--county,-township: 

E. F., Plaintiff, Amount of judgment remaining 

„ ! unpaid, as sworn to.$- 

* Costs... .— 

G. H., Defendant. J Amount including costs.. 

To A. B., a constable of said township and county, having 
an execution in said cause, greeting: 

You are hereby ordered, in case the aforesaid sum of- 

3 § 10426. 2 § 10419. 3 § 10422. 

4 See Swan’s Treatise, Chap. 23, § 3. 






ARREST IN CIVIL CASES AFTER JUDGMENT. 161 

dollars shall not be paid, or an amount of property of the 
said G. II., defendant, whereon to levy execution sufficient 
to satfsfy the same can not be found in your county, to ar¬ 
rest the said defendant, G. H., and deliver him to the sher¬ 
iff of the county aforesaid, to be committed by him, the 

said sheriff, to the jail of the said county of-, and kept 

in custody until discharged by law. Make return of your 
execution hereof within thirty days from your receipt of 
this order. 

Given under my hand this-day of-, 19—. 

C. D., Justice of the Peace. 

21. Items of fees to be indorsed on the writ (see paragraphs 
36, 37, Chapter 5. 

Service and return of order of arrest... .$ 

Copy of order of arrest. 

Service of copy of affidavit. 

Mileage,-miles. 

[Other items , if any.] . 

Total...$ 

22-23. Form of certificate on the copy delivered to defendant. 

I certify the within to be a true copy of the original or¬ 
der of arrest, and that the accompanying affidavit was de¬ 
livered to me with said order of arrest by the within named 
justice of the peace. A. B., Constable. 

24-25. Form of certificate on the copy left at the county jail. 

I certify the within to be a true copy of the original or¬ 
der of arrest, and of my return thereon. 

A. B., Constable. 

26-27. Form of return , when arrest and commitment are made. 

Sufficient personal property of within named defendant 
not found to satisfy the judgment within set forth, and for 
want thereof, I delivered a copy of this process [and affi¬ 
davit, if there was any filed] to said defendant, and arrested 

and delivered him to the sheriff of-county, with whom 

I left a certified copy of this writ. A. B., Constable. 

28-29. Form of return, when defendant is already in prison. 

Sufficient personal property of within named defendant 
not found to satisfy the unsatisfied judgment within set 
forth; and said defendant not arrested as herein com¬ 
manded, since at the time of the receipt of the within writ 
by me, the within named defendant was in custody in the 

jail of -county, at the suit of E. F., and from thence, 

and until and at the return hereof, was, and is, in said cus¬ 
tody at the suit of said E. F. ; plaintiff, against him. 

A. B., Constable. 







162 


CONSTABLES, MARSHALS,ETC. 


30-31. Form of return, tchen the money is paid. 

This writ satisfied, -, 19—, by the payment of the re¬ 
quired amount of money. A. B., Constable. 

32. For other forms of return, follow t?he first form above 
through and including the words “ and for want thereof,” 
and then finish as in the forms given in the case of arrest 
before j udgment, in Chapter 25. 

Arrest under an Execution against the Person. 

33. For what causes an execution against the person may issue. 
An execution against the person of the debtor may be is¬ 
sued upon any judgment for the payment of money:—(1) 
When the judgment debtor has removed, or begun to re¬ 
move, any of his property out of the jurisdiction of the 
court, with intent to prevent the collection of the money 
due on the judgment. (2) When he has property, rights 
in action, evidences of debt, or interest or stock in a corpo¬ 
ration or company, which he fraudulently conceals with 
the like intent. (3) When he has assigned or disposed of 
all or part of his property, or rights m action, or has con¬ 
verted the same into money, with intent to defraud his 
creditors, or with the intent to prevent such property from 
being taken in execution. (4) When he fraudulently con¬ 
tracted the debt or incurred the obligation upon which the 
judgment was rendered. (5) When the judgment was ren¬ 
dered for money, or other valuable thing, lost by playing at 
any game, or by means of any bet or wager. (6) When he 
was arrested on an order before judgment, and has not 
been discharged as an insolvent debtor, or the order has not 
been set aside as improperly made. 1 

34. Requisites of such execution. An execution against the 
person of the judgment debtor requires the officer to ar¬ 
rest such debtor, and commit him to the jail of the county 
until he pays the judgment, or is discharged according to 
law.’ 2 

35. May he issued by justice of the peace. A justice of the 
peace may issue an execution against the person of a judg¬ 
ment debtor, upon being satisfied of the existence of one 
or more of the particulars set forth in paragraph 33, above, 
by the affidavit of the judgment creditor, or his attorney, 
and such other evidence as may be presented. 3 

36. For the form of such execution , see paragraphs 20-24 of 
Chapter 11. 

37. When issued of course. When the judgment debtor 
was arrested before judgment, and has not been released 
from imprisonment by an application for relief as an in¬ 
solvent debtor, and the order for such arrest has not been 


l§ 11745. 


2§ 11744. 


3§§ 11746, 11747. 



ARREST IN CIVIL CASES AFTER JUDGMENT. 163 

adjudged improper, an execution against the person of such 
judgment debtor may issue of course. 1 

38. Discharge by delivery of property. A person taken in 
execution as aforesaid must be discharged by delivering or 
setting off to the officer who serves the writ, if issued from 
a court of record, real or personal property, or if issued 
by a justice of the peace, personal property only, sufficient 
to satisfy the judgment and costs for which the writ was 
issued. 2 


1 § 11748 


2 § 11749. 


164 


CONSTABLES, MARSHALS, ETC. 


CHAPTER 27. 


ARRESTS FOR CONTEMPT. 


]. Contempts which may be punished. A justice, mayor, 
police judge, or any one acting as such by proper appoint¬ 
ment, may punish, as for a contempt, persons guilty of the 
following acts, and no others: (1) Disorderly, contemptu¬ 
ous, or insolent behavior toward the magistrate, tending to 
interrupt the due course of trial, or other judicial proceed¬ 
ing before him. (2) A breach of the peace, boisterous con¬ 
duct, or violent disturbance, tending to interrupt the due 
course of a trial, or other Judicial proceeding. (3) Willful 
resistance in the presence of the magistrate, to the execu¬ 
tion of a lawful order, or process, made or issued by him. 1 

2. Arrest, trial, and sentence in such case. A warrant of ar¬ 
rest may be issued by such magistrate, on which the per¬ 
son so guilty may be arrested and brought before the magis¬ 
trate, when an opportunity to be heard in his defense, or 
excuse, must be given ; the magistrate may thereupon dis¬ 
charge him, or may convict him for the offense, and 
adjudge a punishment by fine or imprisonment, or both; 
such fine not to exceed twenty dollars, and such imprison¬ 
ment ten days. 2 

3. Warrant of commitment; what to contain. The con¬ 
viction, specifying particularly the offense and the judg¬ 
ment thereon, must be entered in his docket; a warrant of 
commitment to the jail of the county, until the fine is paid, 
or for the term of imprisonment, may then be issued; such 
warrant must contaiu a transcript of the entry in the 
docket, and it must be executed by any proper ministerial 
officer to whom it is given, and by the jailer of the county. 3 

4-9. The form of the warrant of arrest may be substantially 
as follows: 

The State of Ohio, Hancock County, \ e 

The Municipal Corporation of Findlay. / ss ’ 

To the marshal of said corporation, greeting: 

Whereas, on the - day of -, 19—■*' before me, the 

undersigned, mayor of said corporation, at my office therein, 
a certain trial [or, proceeding, etc., as may be \ was progress¬ 
ing, when one G. H. then and there willfully interrupted 

1 §§ 1735, 4557. 2 §§ 1736, 4557. 2 §§ 1737, 4557. 




ARRESTS FOR CONTEMPT. 


165 


the due course of said trial [or, proceeding, etc.'] by [here is 
stated what G. H. did or was guilty of, as, boisterous conduct, 
or, insolent behavior toward me, the said mayor, etc.] 

You are therefore commanded to arrest forthwith said G. 
H., and bring him before me to answer for said contempt; 
and for so doing, this shall be your warrant. 

Given under my hand and official seal, this-day of 

> 19 • 

[seal.1 C. D., Mayor. 

10-16. The form of warrant of commitment in such case may 
be substantially as follows: 

State of Ohio, Hancock County, 1 

The Municipal Corporation of Findlay. j ss * 

To the jailer of said county [or, superintendent of-work- 

hcuse], greeting: 

Whereas, the below named G. H. has been by me, the 
undersigned, mayor of said municipal corporation, tried 
and found guilty of a contempt of court committed before 
me, the said mayor, as will more fully appear from the fol¬ 
lowing transcript from my docket, to wit: [Here will he a 
copy of the docket of said proceeding against G. H.] 

You are therefore hereby commanded to receive the said 
G. H. and to confine him in the jail of said county [for the 
period of one day or more, or this part will he omitted, as the 

facts require, and] till he pay said fine of-dollars, and the 

costs, being -dollars and-cents, or till he be other¬ 

wise duly discharged according to law. 

Given under my hand and official seal, this-day of 

-, 19—. 

[seal.] C. D., Mayor. 

17. The service, return, etc., of this writ must be as directed 
in paragraphs 4 to 14, especially the first part of paragraph 9 
of Chapter 5, which see. 

18. Exemptions from such arrest. There are probably no 
exemptions from such arrests for contempt, except such as 
apply to criminal cases given in Chapter 23. 



166 


CONSTABLES, MARSHALS, ETC. 


CHAPTER 28. 

ARRESTS IN CRIMINAL CASES, AND PROCEED¬ 
INGS THEREUNDER. 


1. Certain matters already considered , where. Many matters 
concerning the nature of arrests, and how made, when ar¬ 
rests may be made without warrant, and when not, the war¬ 
rant and its requisites, have already been considered in 
Chapter 22, whose first two subdivisions (pars. 1-55) should 
carefully be read by the ministerial officer before acting un¬ 
der this one. See also paragraphs 6 and 7 of Chap. 33. 

2. That chapter contains chiefly important principles de¬ 
cided by the courts to be the law. This chapter contains 
chiefly laws as enacted by the legislature, as to proceed¬ 
ings in criminal cases before magistrates, various forms and 
constables’, marshals’, and policemen’s duties concerning 
the same. 

3. When and by whom arrests to be made , and what for. As has 
already been more fully stated, 1 a constable, marshal, deputy 
marshal, watchman, or policeman must arrest any person 
found violating any law or ordinance until a legal warrant 
can be obtained. 

4. Also, that when a felony has been committed, any per¬ 
son may , without warrant, arrest another whom he believes, 
and has a reasonable cause to believe, to be guilty of the 
offense, and may detain him until a legal warrant can be 
obtained. 

5. For the definition of felony and misdemeanor, see par. 
33 of Chapter 22; and for a list of offenses against the laws 
of Ohio, stating w r hich of them are felonies, and which mis¬ 
demeanors, see Chapter 32. 

6. Security for costs of prosecution. When the offense 
charged is a misdemeanor, the magistrate may, before issu¬ 
ing the warrant, require the complainant, or some other 
person, if he considers the complainant wholly irrespon¬ 
sible, to become bound for the costs in case the complaint 
be dismissed; but no such bond can be required of a sher¬ 
iff, deputy sheriff, constable, marshal, or deputy marshal, 


1 See pars. 30-33 of Chap. 22. 


ARRESTS IN CRIMINAL CASES, ETC. 


167 


watchman or police officer, when in the discharge of their 
official duties. 1 

7. What warrant to contain, and to whom directed. The war¬ 
rant must be directed to the sheriff or to any constable of 
the county, or, when it is issued by an officer of a municipal 
corporation, then to the marshal or other police officer of 
such corporation. It must show, by a copy of the affidavit 
inserted therein, or annexed and referred to, or recite, the 
substance of the accusation ; and must command the officer 
forthwith to take the accused and bring him before the 
magistrate or court issuing the warrant, or some other magis¬ 
trate of the county having cognizance of the case, to be 
dealt with according to law. 2 

8. Who may issue warrants. Justices of the peace, mayors, 
and police judges, may issue process for the apprehension 
of any person charged with an offense, and execute the 
powers conferred and duties enjoined in the penal laws oj 
Ohio. 3 

9. When warrant to issue. When an affidavit charging any 
person with the commission of an offense is filed with such 
magistrate, he must, if he has reasonable ground to be¬ 
lieve that the offense charged has been committed, issue a 
warrant for the arrest of the accused. 4 

10-15. Usual form of such warrant — 

The State of Ohio,-county, ss. 

To any constable of said county, greeting: 

Whereas, complaint in writing has been made before me, 
one of the justices of the peace in and for the count} 7 afore¬ 
said, upon the oath of E. F., that G. H. did., on or about 

the - day of -, a. d. 19—■, in the county aforesaid 

[here the nature of the offense committed is described ]. 
These are, therefore, to command you to take the said 
G. H., if he be found in your county, or if he shall have 
fled, that you pursue after him into any other county 
within this state, and him take and safely keep, so that 
you have his body forthwith before me, or some other 
magistrate having competent jurisdiction, to answer the 

1 § 13499. 2 § 13500. 3 § 13494. 

* § 13496. 

§ 13497 provides that an affidavit substantially in the form fol¬ 
lowing' is sufficient: 

The State of Ohio, - county, ss. 

Before me, C. D., personally came A. B., who, being duly sworn ac¬ 
cording to law, deposes and says that on or about the ——• day of 
-, at the county of -, one G. H. [here describe the offense com¬ 
mitted as nearly according to the nature thereof as the case will admit]. 

C. D. 

Sworn to and subscribed before me, this - day of -, -. 

C. D., Justice of the Peace. 




1G8 


CONSTABLES, MARSHALS, ETC. 


said complaint, and be further dealt with according to law. 

Given under my hand, this - day of -, A. d. 19 —. 

C. D., Justice of the Peace. 

16. Accused may be pursued and arrested in any county. If 
the accused flee from justice, the officer holding the war¬ 
rant may pursue and arrest him in any county of this state, 
and convey him before the magistrate or court issuing the 
warrant, or other magistrate or court of the county having 
cognizance of the case. 1 

17. Warrant may issue in other county. If a person charged 
with an offense abscond or remove from the county in which 
such offense is alleged to have been committed, a magistrate 
of the county in which such person is found may issue a 
warrant for his arrest, and removal to the county in which 
the offense is alleged to have been committed, to be there 
delivered to any magistrate of such county, who must 
cause the person so delivered to be dealt with according to 
law; and the warrant so issued will have the same force 
and effect as if issued from the county in which the offense 
is alleged to have been committed. 2 

18. If the wari ant directs the removal of the accused to 
the county in which the offense was committed, the officer 
holding the warrant must deliver the accused to some mag¬ 
istrate of such county, to be dealt with according to law; 
and all the necessary expense of such removal, and reason¬ 
able compensation for his time and trouble, must be paid 
to such officer, out of the treasury of such county, upon the 
allowance and order of the county auditor. 3 

19. Must bring arrested person before magistrate. When the 
officer holding the warrant arrests the accused, he must 
take him before the proper magistrate. 4 

20. Return of warrant. The arresting officer, having in¬ 
dorsed and signed a proper return on the warrant, must de¬ 
liver the warrant to the magistrate. 4 

21-22. Form of return on warrant — 

May 21, 19—. I have the body of the within named G. 
H. now in custody [or, now in court]. 

A. B., Constable. 

23. Subpoenas. At some time after the return of the war¬ 
rant, the magistrate will probably issue subpoenas for wit¬ 
nesses, to testify at the hearing of the case, both for and 
against the accused. As to such subpoenas, see Chapter 7, 
especially paragraphs 3 and 18-29. 

24. Summons for jury may also be issued, especially if 
the trial be for the violation of an ordinance of a municipal 
corporation. As to this, see Chapter 8. 

1 § 13502. 2 § 13503. 2 § 13493. * § 13506. 




ARRESTS IN CRIMINAL CASES, ETC. 


169 


25. Attachments for witnesses or jurors may be issued to the 
ministerial officer to serve. As to these, see Chapter 10. 

26. Adjournment , recognizance and commitment during exam¬ 
ination. The magistrate may, for any just cause, adjourn 
the examination of the accused, and commit the accused, 
from time to time, for safe-keeping, to the jail of the 
county, until the cause of delay is removed, and no longer; 
but the whole time of such confinement in jail must not 
exceed four days; or, the officer having in custody any 
such person may, by the written order of the magistrate, 
detain him in custody in some secure and convenient place 
other than the jail, to be designated by said magistrate in 
his order, not exceeding four days. 1 But he must permit 
the accused to give bond for his appearance at the time re¬ 
quired after adjournment, instead of so committing him. 2 

The mayor of a municipal corporation having a jail or 
other place of safe-keeping for such persons, orders the 
commitment of the accused, during such adjournment, to 
such jail, instead of to the county jail, if no such bond is 
given. 

27-31. Form of commitment pending examination. 

The State of Ohio,-county, ss: 

To the keeper of the jail of the county aforesaid, greet¬ 
ing: 

Whereas, G. H. has been arrested on the oath of E. F., for 
[here is described the offense according to the facts], and has been 
brought before me for examination, and the same has been 
necessarily postponed by reason of [ here is stated the cause of 
delay , according to the fact].' Therefore, I command you, in 
the name of the State of Ohio, to receive the said G. H. 
into your custody, in the jail of the county aforesaid [or in 
such other place as the justice shall name , if this be not directed to 
the keeper of the jail], there to remain until discharged by 
due course of law. 

Given under my hand, this - day of -, 19 . 

C. D., Justice of the Peace. 

32. Form of return on warrant. 

May 21, 19—. By virtue, of this writ, I have this day 
committed the body of the within named G. H. to the jail 

of - county, Ohio, and have left with the jailer thereof 

a certified copy of this writ. A. B., Constable. 

33. Sustenance of prisoner. The officer in whose custody 
any person is detained must provide for the sustenance of 
such prisoner while in custody. 1 

34. Order on jailer for prisoner. When the accused has 
been committed to the jail of the county, as mentioned in 
paragraph 26, above, the magistrate should send an order 

i § 13507. 2 § 13508. 





170 


CONSTABLES, MARSHALS, ETC. 


substantially as follows to the jailer, as his warrant for re¬ 
leasing the prisoner into the care of the ministerial officer: 

35-40. Form of order on jailer for prisoner — 

The State of Ohio,-county, ss. 

To any constable of-county, greeting: 

Whereas, G. H. lias been arrested on a warrant issued by 
me, C. I)., one of the justices of the peace in and for said 
county, on a charge of [ state here]. 

And whereas, said G. H. was committed to the jail of 
said county, on account of the postponement of his trial to 
the - day of -, a. d. 19—, at — o’clock — m. 

You are, therefore, hereby commanded to receive the 
said G. H. from the custody" of the keeper of said jail, so 
that you have his body before me, at the time aforesaid, to 
answer in the premises. 

Given under my hand, this - day of , A. D. 19 . 

C. D., Justice of the Peace. 

41. j Return on such order , etc. The officer so receiving the 
prisoner should conduct him to the place of hearing before 
the magistrate, and then make the same return on this writ 
as given in paragraphs 21-22, above, in this chapter. 

42. Preliminary trial or hearing before magistrate. When the 
accused is brought before the magistrate, and there is no 
plea of guilty, he must, as soon as may be, in the presence 
of the accused, inquire into the complaint; and if it appear 
that an offense has been committed, and that there is prob¬ 
able cause to believe the prisoner guilty, he must order him 
to enter into a recognizance, with good and sufficient 
surety, in such an amount as he may deem reasonable, for 
his appearance at the proper time, before the proper court; 
otherwise, he must discharge him from custody; but if the 
offense charged is a misdemeanor, and the accused, in a 
writing subscribed by him, and filed before or during the 
examination, waive a jury, and submit to be tried by the 
magistrate, he may render final judgment. 1 

43. The constable, or marshal, as the case may be, must 
be present at the trial. See paragraphs 1, 2, of Chapter 9. 

44. If, upon the whole examination, it appear that no 
offense has been committed, or that there is not probable 
cause for holding the prisoner to answer the offense, he 
must be discharged. 2 

45. If the accused gives the bond (“ enters into the recog¬ 
nizance”) mentioned in the paragraph 42 above, he is dis¬ 
charged, and the constable has no further duties in that 
case to perform. 

46. If he does not give the said bond when required 


i§ 13511. 


2 § 13513. 




ARRESTS IN CRIMINAL CASES, ETC. 


171 


so to do, he is committed to the county jail to await the 
action of the grand jury on his case. 1 

47-51. Form of final mittimus or commitment in such case — 
The State of Ohio,-county, ss. 

To the keeper of the jail of the county aforesaid, greeting: 

Whereas, G. H. has been arrested on the oath of E. F. for 
[here is stated the offense committed ], and has been examined 
by me on such charge, and has been required to give bail 

in the sum of - dollars for his appearance before the 

court of common pleas Lor, probate court, if so] of said 
county, on the first day of next term thereof [or, forthwith, 
if so], which requisition he has failed to comply with. 

Therefore, in the name of the State of Ohio, I command 
you to receive the said G. II. into your custody in the jail 
of the county aforesaid, there to remain until he be dis¬ 
charged by due course of law. 

Given under my hand, this- day of -, a. d. 19— 

C. D., Justice of the Peace [or, Mayor]. 

52. The officer, having received a writ substantially like 
the foregoing, then at once makes a copy of said writ and a 
certificate thereon, as in paragraphs 53-54 below, and then 
takes it and the prisoner to the jail of the county, and de¬ 
livers to its jailer, the prisoner, and said copy. 

53-54, Form of certificate on copy of commitment left with 
jailer — 

I certify that the within is a true copy of the original 
writ. A. B., Constable [or, Marshal]. 

55. Return of original writ , etc. The officer then makes out 
on the original writ the following return, and then delivers 
it to the magistrate who gave it to him. 

56-58. Form of return on original writ — 

May 22, 19—. 

By virtue of this writ, I have this day committed the 

body of the within-named G. H. to the jail of -county, 

Ohio, and have left with the jailer thereof a certified 
copy of this writ. 

A. B., Constable [or, Marshal]. 

59-61. The itemized statement of fees must be made on 
the writ, as required by paragraph 36 of Chapter 5, which 
may be substantially in form as follows: 

CONSTABLE’S FEES ON THIS W r RIT. 

Service and return. 40 

Copy.. 25 

Mileage, 16 miles. 95 

{Add other items , if any) . 

Total...$ 

1 §§ 15312 (92 v. 99), 13528. 







172 


CONSTABLES, MARSHALS, ETC. 


62. Commitments to work-house outside of county or munici¬ 
pality. The commissioners of any county or the council of 
any municipality, wherein there is no work-house, may 
agree with the city council, or other authority having con¬ 
trol of the work-house of any city in any other county, or 
with the board of district work-houses having a work-house, 
upon terms and conditions upon which persons convicted 
of misdemeanors, or of the violation of any ordinance of 
such municipality, by any court or magistrate of such 
county or municipality having no work-house, may be re¬ 
ceived into such work-house under sentence of such court 
or magistrate; and may pay the expenses incurred under 
such agreement. 1 

63. Sentence of accused. Provision is made as to what 
sentence may be imposed on the convict sent to such work- 
house by the judge or magistrate, including imprisonment 
for fine and costs, and as to working out such fine and 
costs at sixty cents a day, if not paid otherwise. 2 But with 
this, the transporting officer has nothing at all to do, and 
can in no way be affected, even if the sentence be excessive 
or illegal. 

64. Transcript etc. In cases of such convictions by any 
other court than the common pleas court, or by any mag¬ 
istrate, such court or magistrate must make a certified 
transcript of the docket in such case, which must be de¬ 
livered to the marshal, or constable, or sheriff by such court 
or magistrate. This transcript must be delivered by such 
officer to the proper officer in charge of such work-house, 
and will be his warrant for detaining such person in custody 
therein. In all cases of such sentences, the person so sen¬ 
tenced may be confined in the jail of the county for such 
period as may be reasonably necessary for the officer to 
procure the papers and make arrangements to transport 
him to such work-house. 3 

65. As to mittimus , and officer's return , in such cases. Al¬ 
though the statute does not expressly say here that a mit¬ 
timus must be issued, the usual course of procedure in all 
similar cases requires that one be issued, and one probably 
should be issued in these cases. The transcript mentioned 
in paragraph 64 above seems, however, to take the place 
of the copy of the mittimus, which the ministerial officer 
has to make and deliver to the jailer in other cases. If 
such mittimus be given him, he should make return thereon 
as follows: 

66. -, 18—. By virtue of this writ, I have this day 

committed the body of the within named G. H. to the 
[ name the work-house ], and have left with the superintendent 

1 § 12384. A constable can not commit to a work-house in another 
county a prisoner found guilty of violating a state law unless the sen¬ 
tence so provides, although the writ directs such confinement. Young 
v. State, 11 O. C. C. (N.S.) 4GO, 21-31 O. C. D. 1. 

2 § 12386. 3 § 12388. 


ARRESTS IN CRIMINAL CASES, ETC. 


173 


thereof a certified copy of this writ, and the transcript 
given to me by the within named magistrate for that pur¬ 
pose. A. B., Marshal. 

67. If no mittimus be given him, the officer should make, 
on a separate paper, a report substantially as follows: 

68. -, 19—. I have this day committed the body of 

G. H. to the [ name the work-house ], and have left with the 
superintendent thereof the transcript of the trial of said 
G. H., given me with said prisoner for that purpose. 

A. B., Marshal. 

69. Transporting officer’s fees. The officer transporting any 
person to such work house is entitled to the following fees 
therefor: six cents per mile for himself, going and return¬ 
ing, and five cents per mile for transporting each convict, 
and five cents per mile, going and coming, for the services 
of each guard, to be allowed as in penitentiary cases, the 
number of miles to be computed by the usual routes of 
travel. 1 

70. Commitments to work-house outside of municipality , but in¬ 
side of county. When a person over sixteen years of age is 
convicted of an offense, under the law of the state or an or¬ 
dinance of a municipal corporation, and the tribunal before 
which the conviction is had is directed by law to commit 
the offender to the county jail or corporation prison, the 
court, mayor, or justice .of the peace, as the ease may be, 
may sentence the offender to the work-house, if there isi 
such house in the county.2 

71. A return in the mittimus in such case must be made, 
which may be in the same words as in paragraph 66 above, 
omitting all after the second “writ” therein. 

1 § 12384. 

2 § 4128. But when a commitment is made from a city, village, or 
township in the county, other than in the municipality containing 
such work-house, the council of such city or village, or the trustees 
of such township, must transmit with the mittimus a sum of money 
equal to forty cents per day for the time of such commitment, to be 
placed in the hands of the superintendent of such work-house, for 
the care and maintenance of such prisoner. Ib. 




174 


CONSTABLES, MARSHALS, ETC. 


CHAPTER 29. 


AS TO BREACHES OF THE PEACE, INCLUDING 
RIOTS; OFFICERS’ DUTIES, ETC., AS TO. 


1. Duties as peace officer . As already stated, it is the con¬ 
stable’s (and marshal’s) duty to suppress all riots, affrays, 
and unlawful assemblies, which may come to his knowledge, 
and, generally, to keep the peace in his proper county ; and 
to arrest, on view or warrant, and bring to justice, all felons 
and disturbers and violators of the criminal laws of this 
state, 1 and that in discharging their duties they may call to 
their aid the power of the county, or such assistance as may 
be necessary. 2 

2. An officer may arrest , without warrant , for a breach of the 
peace committed in his view, while still continuing, but not 
after it is over. 3 Such a breach is so committed, even 
though it be dark and some distance from the officer, if he 
can detect the act and could see the person committing it 
if it were light. 4 

3. When an officer arrests without warrant for a breach 
of the peace committed in his presence, he may lawfully 
arrest any third person who interferes forcibly to prevent 
such arrest. 5 

4. Upon reasonable suspicion, founded either on his own 
knowledge, or the information of others, that a felony has 
been committed, or such a breach of the peace as will 
probably prove to be a felony, he may arrest without a 
warrant. 6 

5. As to entering houses , breaking doors , generally, see Chap¬ 
ter 24. 

6. A constable or police officer may enter a house the 
door of which is unfastened, in which there is a noise 

1 § 3340. 2 § 3336. See pars. 36, 37, Chap. 3. 

3 Mosely v. State, 4 S. W. Rep. (Tex.), 907. 

4 Pow v. Becker, 3 Ind. 475 ; Wahl v. Walton, 30 Minn. 506; Quinn 

v. Heisel, 40 Mich. 576; Taylor v. Strong, 3 Wend. 384; Meyer v. 
Clark, 41 N. Y. Sup. Ot. 107 ; State v. Sims, 16 S. C. 486 ; Krulevitz 
v. R. R., 9 N. E. Rep. (Mass.), 613; See People v. Haley, 48 Mich. 
495; Sternback v. Brooks, 7 Daly, 142. 

c People v. Bartz, 53 Mich. 493. 

6 Murf. on Sheriffs, § 1161, citing: Shanley v. Wells, 71 Ill. 78; 
Taafe v. Slevin, 11 Mo. App. 507 ; Willis v. Warren, 17 How. Pr. 100; 
Eanes v. State, 6 Humph. 53 ; Commonwealth v. Presbry, 14 Gray, 65. 


AS TO BREACHES OF THE PEACE, ETC. 175 


amounting to a breach of the public peace, and to arrest 
any person disturbing the peace there in his presence. 1 

7. Whai constitutes a breach of the peace. A violation of 
public order, or disturbance of the public peace, disorderly 
drunkenness, any affray, assault, or riot, 2 the wanton dis¬ 
charge of a firearm in a public street, 3 disturbing a religious 
meeting, 4 attempting by force to prevent the servants of a 
a municipal corporation from laying pipe in front of one’s 
residence, 5 publicly exhibiting an obscene picture, and pub¬ 
lic indecent exposures of the person, 6 have each been de¬ 
fined and held to be such acts as justified the offender to be 
arrested without warrant for a breach of the peace. 

8. Certain statutory r breaches of the peace. Challenging an¬ 
other to fight at fisticuffs, or with cudgels, or provoking or 
attempting to provoke another to commit a breach of the 
peace; or carrying any pistol, bowie-knife, dirk, or other 
dangerous weapon, concealed on or about one’s per¬ 
son; or willfully interrupting or disturbing any assem¬ 
bly of persons met for a lawful purpose, or any person 
while he is at or about the place where such assembly is to 
be held, or is or has been held; fighting a duel, challeng¬ 
ing or accepting a challenge to fight a duel, or knowingly 
carrying such challenge; engaging as principal in any 
prize-fight, or aiding, assisting, or attending any prize-fight 
as backer, trainer, second, umpire, assistant, or reporter; 
agreeing to fight and willfully fighting or boxing at fisti¬ 
cuffs or engaging in any public sparring or boxing exhibi¬ 
tion without gloves or with gloves of any kind, or aiding, 
assisting, or attending at any such boxing exhibition or 
glove fight, or permitting the same on or in any grounds, 
lots, buildings, hall, or structure of any kind owned or leased 
by such person permitting it, excepting exercises in a 
gymnasium or athletic club when written permission has 
been obtained therefor for the purpose from the sheriff of 
the county or mayor of the corporation where held ; or en¬ 
gaging in any riot; or beginning, setting on foot, etc., any 
unauthorized military expedition or enterprise to be carried 
on from this state against the territory or people of any 
state of the United States, are classed by the statutes of 
Ohio as offenses against the public peace, and severe pen¬ 
alties are provided against the offenders. 7 


1 Swan’s Treatise, Ch. 73, $ 2. citing 108 Mass. 426. XT 

2 Bouv Law Dio ; Brvan v. Bates, 15 Ill. 87; State v. Bowen, 1/ N. C. 
58; State v. Freeman, 86 N. C. 683; Mosely v. State, 4 S. W. Rep. (Tex.), 
V07; State v. Laffertv. 5 How. 491. 

3 People v. Bartz. 53 Mich. 493. 

4 Vanneever v. Mattocks, 3 Ind.479; Hutchinson v. Sangster,4 Greene 

5 C rosin nd v. Shaw, 12 At. Rep. (Pa.) 849 

o state v. Freeman, 86 N. <3. 683. 7 §§ 12394-12799-12814. 


176 . 


CONSTABLES, MARSHALS, ETC. 


Further as to Riots. 

9. What constitutes a riot. When three or more persons 
assemble together to do an unlawful act with force and 
violence, or, being assembled, do such an unlawful act, or 
agree with each other to do an unlawful act with force and 
violence, and make any preparation or movement therefor, 
or continue together after the officer makes proclamation as 
provided in paragraph 11 below, or attempts to make it and 
is prevented by rioters, they are guilty of riot. 1 

10. Penalty. The statute further declares that such riot¬ 
ers shall each be fined not more than five hundred dollars, 
or imprisoned not more than thirty days, or both, and shall 
give security for good behavior and to keep the peace for 
one year. 2 

11. Warning rioters to disperse; calling aid. Whenever 
three or more persons are unlawfully or riotously assembled, 
it is the duty of all judges, justices of the peace, sheriffs, 
and all other ministerial officers [including constables, 
marshals, policemen, etc.], immediately upon view, or as 
soon as may be on information, to make proclamation in 
the hearing of such persons, commanding them, in the 
name of the State of Ohio, to disperse and depart to their 
several homes or lawful employments; and if such persons 
do not then immediately so disperse and depart, it is the 
duty of said officers, respectively, to call upon all persons 
near, and, if necessary, throughout the county, to aid 
and assist in dispersing and taking into custody all persons 
so assembled. Every person so called, who refuses to ren¬ 
der immediate assistance, is liable to be fined not more than 
fifty dollars. 3 

12. If rioters injured or killed , the slayer held guiltless. If any 
persons unlawfully or violently assembled are killed, or 
maimed, or otherwise injured in consequence of resisting the 
officers or others in dispersing and apprehending them in ac¬ 
cordance with the provisions of the foregoing paragraph, such 
officers and others acting by their authority, or the author¬ 
ity of either of them, will be holden guiltless, if such kill¬ 
ing, maiming, or injury takes place in consequence of the 
use of necessary and proper means to disperse or apprehend 
any such persons so assembled. 4 

13. When three or more persons unite or combine to¬ 
gether, and commit any misdemeanor, while wearing 
white caps, masks, or any disguise, they shall be guilty of a 
riotous conspiracy, and, upon conviction thereof, are to 
be imprisoned in the penitentiary from two to ten years, 

1 § 12800. See also new law. 627S-G2S0. 02 v. 161-1G3, which also 
defines a “mob,” “lynching,” etc., and provides damages against county 
where these occur, but prescribes no new duties for constables, etc. 

2 § 12809. As to such security, etc., see Chap. 31. 3 § 12811. 4 § 12812. 


AS TO BREACHES OF THE PEACE, ETC. 


177 


and to be fined in any sum not 
dollars.* 


exceeding two thousand 


1 § 12810 . 


178 


CONSTABLES, MARSHALS, ETC. 


CHAPTER 30. 


SEARCH WARRANT, AND PROCEEDINGS THERE¬ 
UNDER. 


1. May be issued , when. Justices of the peace, mayors, 
and police judges may issue warrants to search any house 
or place—(1) For property stolen, taken by robbers, embez¬ 
zled, or obtained under any false pretense. (2) For forged 
or counterfeit coins, stamps, imprints, labels, trade-marks, 
bank bills, or other instruments of writing, and dies, 
plates, stamps, or brands for making the same. (3) For 
books, pamphlets, ballads, or printed papers, containing ob¬ 
scene language, prints, pictures, or descriptions manifestly 
tending to corrupt the morals of youth, and for obscene, 
lewd, or indecent or lascivious drawings, lithographs, en¬ 
gravings, pictures, daguerreotypes, photographs, stereo¬ 
scopic pictures, models, or casts, and for instruments or ar¬ 
ticles of indecent or immoral use, or instruments, articles, 
or medicines for procuring abortion, or for the prevention 
of conception, or for self-pollution. (4) For any gaming ta¬ 
ble, establishment, device, or apparatus kept or exhibited 
for the purpose of unlawful gaming, or to win or gain 
money or other property, and for any money or property 
won by unlawful gaming. 1 See also par. 10, Chapter 34* 

2. Affidavit for search warrant. An affidavit particularly 
describing the house or place to be searched, the person to 
be seized, and the things to be searched for, and alleging 
substantially the offense in relation thereto,and that affiant 
believes, and has good cause to believe, that such things 
are there concealed, must be filed with the magistrate be¬ 
fore he can issue such warrant. 2 

3. Search ivarrant must contain what. The warrant for 
search must be directed to the proper officer, and must 
show, by a copy of the affidavit inserted therein, or an¬ 
nexed and referred to, or recite, all the material facts alleged 
in the affidavit, and particularly describe the thing to be 
searched for, the house or place to be searched, and the 
person to be seized; it must command the officer to search 
such house or place for the property or other things, and, if 
found, to bring the same, together with the person to be 
seized, before the magistrate, or some other magistrate ot 

1 § 13482. 2 § 13483. 


SEARCH WARRANT, ETC. 


179 


the county having cognizance of the offense. The com¬ 
mand of the wan ant must be that the search be made in 
the day-time, unless there is urgent necessity for a search 
in the night, in which case such search in the night may be 
ordered. 1 

4. For many important matters as to arrests, etc., see 
Chapter 22. 

5. Provision is made by law for searching for dead bodies 
in suspected places, somewhat similar to the foregoing. 
See '$ 7128. 

6. Officer may break outer doors, etc. In executing a search 
Warrant, the officer may break open any outer or inner door 
or window of a dwelling-house or other building, if, after 
notice of his office and purpose, he be refused admittance; 
but this is not intended to authorize any officer executing a 
search warrant to enter any house or building not described 
in the warrant. 2 See further, as to breaking doors, Chap¬ 
ter 24. 

7-12. The following is the usual form of a search warrant: 

The State of Ohio,-county, ss. 

To any constable of said county, greeting: 

Whereas, there has been filed with me, the undersigned 
justice of the peace in and for said county, an affidavit 
duly made according to law by E. F., wherein it is alleged 

that on or about the - day of -, a. d. 19—, in the 

aforesaid county, the following mentioned and described 
goods and chattels, to wit [ here the articles to be searched for 
are mentioned'], the property of-, have been by some per¬ 

son or persons unlawfully taken, stolen, and carried away 
from the premises of-, of said county, and that said affi¬ 

ant believes, and has good cause to believe, that said goods 
and chattels, or some part thereof, are concealed in the 

-of-, in-township, of said county; [ here is said , 

if so: and further, that there is urgent necessity that said 
last mentioned premises be searched in the night-time, to 
prevent said goods and chattels from being concealed or re¬ 
moved so as not to be found]. 

[Here is also added, if the thief is known: It is therein further 

alleged that-did unlawfully steal, take, and carry away 

said goods and chattels as aforesaid.] 

[Here is also added, when the facts require it: It is therein 
further alleged that on or about the said day,-did un¬ 

lawfully and fraudulently receive and conceal said goods 
and chattels, or some part thereof, in said county, then and 
there well knowing the same to have been unlawfully 
stolen as aforesaid.] 

i § 13484. 

If the goods mentioned in the search warrant can not be found, the 
party accused can uot be arrested on the search warrant, 
a § 13504. 



180 CONSTABLES, MARSHALS, ETC. 

These are, therefore, to command you, in the name of 
the State of Ohio, with the necessary and proper assistance, 
to enter in the day [or, night] time into the residence [or, 

store, etc., as may be) of the said -, of-township, in 

said county, and there diligently search for the above men¬ 
tioned and described goods and chattels, and that you bring 
the same, or any part thereof, found on such search, and 
also the body [or, bodies] of the said [ here may be named all 
who are accused of stealing or concealing the goods, etc., or any of 
them ] forthwith before me, or some other magistrate of the 
county having cognizance thereof, to be disposed of and 
dealt with according to law. 

Given under my hand, this-day of-, a. d. 19—. 

C. D., Justice of the Peace. 

13. As to service, return, etc., of this writ, see paragraphs 
5-21 of Chapter 5. 

14-16. Form of return to search warrant: 

-, 18—, I searched for the goods and chattels described 

in the "within warrant, at the time and place therein di¬ 
rected, and found the following, to wit: [mention the things 
found , for which search was directed in the warrant]. 

I also have the body [or, bodies] of the within mentioned 
[name the person or persons, if any, who were arrested, in obedi¬ 
ence to the warrant ] now in court [or, now in custody]. 

A. B., Constable. 

17-19. Other indorsements. At some suitable place on the 
back of the warrant, make also, at the proper time, the fol¬ 
lowing indorsements tsee paragraphs 6, 36, 37, Chapter 5): 

Received this writ,-, 19—. 

Constable's fees on this writ. Items: 

Service and return...$ 


Mileage,-miles. 

Assistant. 

Total.$ 


20. Property seized to be kept by magistrate. When the war¬ 
rant is executed by the seizure of the property or things 
described therein, the property or things must be safely 
kept by the magistrate to be used as evidence. 1 


i § 13486. 







PEACE WARRANT, ETC. 


181 


CHAPTER 31. 

PEACE WARRANT AND PROCEEDINGS THERE¬ 
UNDER. 

1. Complaint ana warrant to keep the peace. When com¬ 
plaint is made in writing, upon oath, before a justice of 
the peace, mayor, or police judge, that complainant has 
just cause to fear, and does fear, that another will commit 
any offense against the person or property of himself, or of 
his ward or child, the magistrate must issue a warrant, in 
the name of the state, to the sheriff or to any constable of 
the county, or, if issued by an officer of a municipal cor¬ 
poration, then to the marshal or other police officer of such 
corporation, commanding him forthwith to arrest the per¬ 
son complained of, and him to take before such magistrate, 
or any other magistrate of the same county, named in this 
paragraph, to answer such complaint. 1 

2-6. A form of warrant to keep the peace. A warrant sub¬ 
stantially in the form following will be deemed sufficient: 
The State of Ohio,-county, ss. 

To any constable of said county, greeting: 

Whereas, complaint has been made before me by one 
E. F., on oath, that he has just cause to fear, and does 
fear, that one G. H. will [here is stated the threatened injury or 
violence according to the fact as sworn to]. 

These are therefore to command you to apprehend the 
said G. H., and bring him forthwith before me, or some 
other magistrate having cognizance of the matter in said 
county to show cause why he should not find surety to 
keep the peace and be of good behavior toward the citizens 
of tht state generally, and the said E. F. especially, and 
for his appearance before the proper court. 

Given under my hand, this-day of-,-. 

C. D., Justice of the Peace. 2 

7. Further proceedings. The proceedings after the issuing 
of such a warrant are the same, so far as the ministerial 
officer is concerned, as in Chapter 28 above. This latter 
officer must serve and return all subpenas, commitments, 
etc., directed to him by the judicial officer in such cases. 

8. Before making the arrest the officer should read Chapter 
22 above. 


* § 13463. 


3 § 13464. 


182 


CONSTABLES, MARSHALS, ETC. 


9. Bond to keep the peace. After the hearing of the com* 
plaint, the magistrate may require the accused to give 
bond to keep the peace, and if he does so, he will be dis¬ 
charged. 1 

10. When to be committed. If the accused fails to give such 
bond, he must be committed to the county jail till dis¬ 
charged in due course of law. 2 

11-17. Form of mittimus to keep the peace: 

The State of Ohio, Hamilton county, \ 

The Municipal Corporation of Lockland. j s * 

To the keeper of the jail of the county aforesaid, greeting: 

Whereas, complaint in writing has been made before me, 
the undersigned, mayor of said municipal corporation, 
upon the oath of E. F., that he has just cause to fear and 
does fear that G. H. will unlawfully [here is stated what 
offense is feared]. 

And whereas, having examined into the truth of said 
complaint, as required by law, I was of the opinion that there 
was just cause therefor, and thereupon ordered the said G. 
H. to enter into a recognizance, with security, in the sum 
of [here is named a sum not less than $50 nor more thorn $500] 
dollars, conditioned for his appearance before the proper 
court of said county, as the law directs, to answer said 
complaint, and in the meantime to keep the peace and be 
of good behavior, which requisition he has failed to com- 



with. 


Therefore, in the name of the State of Ohio, I command 
you to receive the said G. H. into your custody in the jail 
of the county aforesaid, there to remain until he be dis¬ 
charged by due course of law. 

Given under my hand and seal, this-day of-,19—. 


[seal.] 


C. D., Mayor. 


18. In case of affrays in presence of the magistrate. Every 
person who, in the presence of a justice of the peace, 
mayor, or police judge, makes an affray, or threatens to 
beat or kill another, or to commit an offense against the 
person or property of another, or contends with hot and 
angry words, to the disturbance of the peace, may be or¬ 
dered, without process, or any other proof, to give such 
security as provided in paragraph 9 above, and in case of 
failure or refusal, he may be committed as provided in par¬ 
agraph 10 above. 3 

19. Any person competed of a misdemeanor may be required 
to enter into a recognizance +o keep the peaca, and on de¬ 
fault of so doing, may be committed as provided in para¬ 
graph 10 above.* 

1 § 13466. 2 § 13467. 3 § 13472. * § 13473. 


CRIMES AND OFFENSES, ETC. 


188 


CHAPTER 32. 


CRIMES AND OFFENSES; WHAT ARE, AND WHO 
GUILTY OF. 


1. As the law imposes certain duties and obligations, and 
confers certain rights, upon all ministerial officers concern¬ 
ing the arrest of persons guilty, or probably guilty, of any 
criminal offense, these duties, etc., being quite different in 
cases of misdemeanors and of felonies, 1 it is important for such 
officers to know what acts are such criminal offenses, and 
also which of them are misdemeanors , and which are felonies. To 
do this as fully in all details as is done by the statutes would 
occupy as much space as would fill a large volume, and 
can therefore not be so done here. But enough can prob¬ 
ably be set forth to give a good idea of what acts constitute 
either a felony or a misdemeanor, and who is guilty thereof, 
though the criminal act can not be set forth in full, nor the 
extent of the punishment stated. From the references to 
the sections of the statutes given in the foot-notes, the offi¬ 
cer can readily find the complete contents of the section re¬ 
ferred to, in the copy' of tue General Code in the magis¬ 
trate’s office. 

2. The foregoing is applicable also to contempts of court. 


Some General Provisions. 

3. Whoever aids, abets, or procures another to commit 
any offense, is guilty of a felony or misdemeanor, as if he 
were the principal offender. 2 

4. Offenses which may be punished by death, or by im¬ 
prisonment in the penitentiary, are felonies; all other 
offenses are misdemeanors. 3 

Misdemeanors. 

5. Any person offending in any way set forth below is 
guiity of a misdemeanor. 

6. Any railroad superintendent or other executive officer 

1 See nars. 30-39, of Chap. 22, and pars. 3, 4, of Chap. 28. 

a § 12380. 3 § 12372. 


184 


CONSTABLES, MARSHALS, ETC. 


who refuses to obey orders of the state commissioner of 
railroads as to putting or keeping road in proper condition. 1 

7. Any officer, agent, or employe of railroad company 
who refuses to answer any questions of said commissioner. 2 

8. Any person in the employment of any insurance com¬ 
pany, who violates insurance laws; 3 or who makes con¬ 
tracts or offers inducements to insurants, not expressed in 
policy. 1 

9. Every owner, lessee, or agent of a mine or quarry who 
fails to comply with the law relating to the same, or who 
makes false return concerning same. 5 

10. Any agent, owner, etc., of a mine, factory, elevator, 
etc., who refuses to furnish map, etc., of mine, statistics, 
etc. 6 

11. Whoever sells uninspected oils for illuminating pur¬ 
poses, or whoever falsely brands any package, cask, or 
barrel, or uses barrel, etc., having inspector’s brand there¬ 
on, without the oil therein having been inspected. 7 

12. Whoever knowingly uses for illuminating purposes 
any uninspected oils; 3 or sells empty oil casks without de¬ 
facing brand; 9 or adulterates any oil obtained from petro¬ 
leum or from coal, in such manner as to render it danger¬ 
ous for use, or offers such adulterated oil for sale. 19 

13. Any state inspector of oils, or his deputy, who, having 
knowledge of the violation of the laws concerning oils, 
fails to enter complaint as provided by law; 11 or who traf¬ 
fics in any article which he is appointed to inspect. 12 

14. Any probate judge or deputy clerk who practices 
law. 13 


15. Any sheriff, coroner, or constable who refuses to 
serve process of probate court. 11 


16. Any county commissioner who fails or neglects to 
make the report required of him by law. 15 

17. Any infirmary superintendent, director, etc., who 
certifies to fraudulent bills. 16 


18. County auditor who refuses or neglects to make set¬ 
tlements, or who willfully neglects any legal duty. 17 


I §§ 585, 586. 2 § 609. 

12954 (90 v. 345). 

8 $ 12573 (89 v. 279). 

II § 12892 (89 v. 280). 

15 § 2509. 18 § 2554. 


3 §§ 672 (91 v. 331), 9378. 

6 § 905. « §§ 917, 920. 7 § 12569. 

• § 13178. § 12572. 

u § 8J1. 18 § 12854. 1* §§ 1596, 1597. 




( KIMES AND OFFENSES, ETC. 185 

10. Any person who interferes with county surveyor, in 
the discharge of his office.* 

20. Any constable, etc., who fails to execute any warrant 
directed to him by the coroner, and any coroner who re¬ 
fuses to perform any duty required of him by law.2 

21. Any officer required to report concerning fees of 
county officers, who neglects to do so, or who violates any 
of the provisions in that behalf. 6 

22. Any assessor, who willfully omits to return any prop¬ 
erty for taxation, or any auditor who shall willfully omit 
any property from the tax duplicate, or any person who 
conspires to wrongfully increase the amount of any tax 
omission. 4 

23. Any sexton who permits dead body to remain un¬ 
buried until it becomes offensive. 5 

24. Any township clerk refusing or neglecting to make 
out and put up detached statement of receipts and ex¬ 
penditures. 6 

25. Assessor who neglects to administer an eath to every 
person upon whom he calls to list property for taxation.? 

26. Any clerk of municipal corporation who fails to post 
statement of receipts and expenditures at voting place. 6 

27. Any person having burglar’s tools in his possession. 9 

28. Any person lawfully committed to work-house, who 
escapes or attempts to escape therefrom. 10 

29. Whoever violates an order of the board of health, or 
interferes with the execution of any such order, or illegally 
omits to obey such an order. 11 

30. Any engineer, conductor, etc., violating ordinance as 
to rate of speed of trains within corporate limits. 16 

31. x\ny owner or person having control of hall, opera 
house, etc., who permits the same to be used when it is 
not sufficiently protected against fire, or provided with 
water, easy exits, etc. 16 Same as to boarding schools. 14 

32. Any proprietor of any shop or factory who fails to 
comply, within thirty days, with notices served by in¬ 
spectors to make necessary alterations or additions. 15 

IS 13401. 2 8 2858. 3 § 3036. *§ 5574. 6 § 12684. 

« | 3304. 7 § 3355. 8 § 4288. ® § 12439. 10 § 12840. 

a §§ 4424, 4470. 

12 § 3781. 13 § 4652 u § 12575. 18 § 4657, 4658. 


18G CONSTABLES, MARSHALS, ETC. 


33. Any person who violates rules for valuing personal 
property .5 

34. Any bank officer who fails to furnish statement to 
county auditor, or who makes out a false statement. 0 

35. Any officer, agent, etc., of express, telegraph or tele¬ 
phone company who refuses to submit books or papers or 
to answer questions of proper authority. 7 

36. Any officers, etc., of railway company, who refuse 
to comply with requirements of board of assessors and ap¬ 
praisers of railway stock. 0 

37. Acting as agent for express or telegraph company 
in default for taxes. 9 

38. Any officer, judge, etc., who fails to preserve order 
at elections, or to perform'other duties required of him. 10 

39. Any registrar of elections, or other registering officer, 
who permits false registration, or who refuses registra¬ 
tion. 11 

40. Any judge or clerk, etc., at elections, who distri¬ 
butes ballots inside of polling room, or who tliene has in 
his possession' any ticket except the one he intends to 

vote. 12 

41. Any neglect of duty b.y officers of election.^ See 
also 205 d. 

42. Acting as registrar, judge, or clerk, without certifi¬ 
cate of appointment, or acting as substitute judge without 
notice, or neglecting to forward notice, etc. 14 

43. Any physician who gives false certificate of dis¬ 
ability as to militia service. 10 

44. The agent of any railroad company who knowingly 
diverts freight from the railroad line named by shipper. 1 6 

45. Any conductor who does not eject disorderly or 
gambling passenger, or‘ who fails to arrest such passenger. 1 7 

46. Any person connected with a telegraph company, 
who divulges the contents of a private message, or who 
neglects' or delays to deliver the same. 10 

47. Any person who evades toll on turnpike. 19 

48. Any person who obstructs travel on roads. 20 

49. Any electric road owner or operator not complying 
with law as to watchmen at railway crossings, etc. 21 

50. Any officer, trustee, etc., who insures, etc., any per¬ 
son, without that person’s knowledge or consent, etc. 22 

51. Having corpse in possession without proper au¬ 
thority.^ 

52. Any taker of enumeration of school youth, who 
makes fradulent returns. 24 


5 § 12024. 

8 § 12870. 
13 § 13286. 
48 § 13388. 
22 § 13134. 


6 § 5413. '§ 12871 (90 v. 332; 91 v. 222, 240). 

9 § 13415. 10 § 13356. 41 § 13286. 12 § 13286. 

14 § 13286. is § 12927. i 8 § 13420. w § 9459. 
i» § 9238. 20 § 6310. 2i § 9123 (89 v. 346). 

23 § 12691. 24 § 12929. 


CRIMES AND OFFENSES, ETC. 187 

53. Any person constructing a barbed wire partition 
fence without other owner’s consent. 4 

54. Keeping a ferry without license. 5 

55. Not properly branding or marking flour barrel or 
sack.® 

56. Using inferior oils in mines. 7 

57. Any soap or candle maker who puts in any box or 
package a less quantity than is marked or branded there¬ 
on. 8 

58. Any person taking fish and neglecting to bury offals. 9 

59. Any perso.n who sells uninspected spirituous 
liquorsd 0 

60. Fraudulently packing leaf tobacco. 1 * 

61. Any saloon-keeper, etc., who publishes notice, by 
person liable to injury by sale of liquor. 12 

62. Taking unlawful toll by miller. 12 

63. Wharf-boatman refusing to hail passing steamboat. 14 

64. Conducting drug-store, etc., not being a registered 
pharmacist. 1 s 

65. Violating §§ 6337-6346 as to pawnbrokers. 1 ® 

66. Keepers of junk-shops and second-hand stores who 
neglect to put up sign, or to keep books as required by 
§ 6370, or who deal with minors, etc., and outside of pre¬ 
scribed hours. 17 

67. Exposing for sale any commercial fertilizer without 
complying with the provisions of §§ 1139-1155, or permit 
fraudulent analysis to be attached to packages of. 18 

68. Hauling unlawful burdens, or using too* narrow tire 
on improved public road. 19 

69. Whoever, being a jury commissioner, accepts a gift, 
compensation or favor, or the promise thereof, etc. 20 

70. Or being a person, firm or corporation, or an officer 
or agent thereof, makes or promises any gift, favor or 
compensation to a- jury commissioner. 21 

71. Whoever attempts to corrupt a juror or influence 
him in the discharge of his duty. 22 

72. WTioever influences commissioner, etc., in selection 
of jurors. 23 

73. Executor, administrator, etc., not appearing in court 
when summoned for examination. 24 

74. Solemnizing marriage unlawfully, or by person not 
authorized. 25 

75. Administering medicine when intoxicated. 2 ® 

76. Administering certain secret drugs and medicines, 
and not disclosing nature of, when asked. 27 

* § 12641. 6 § 13407. 

8 § 5999 (88 v. 152). 7 § 974. 8 § 6039. »§ 12782. 

10 § 13214. ii § 13147. I 2 § 13215. 13 § 13110. 74 § 6321. 

i® § 12905 i° § 13400. 1 7 § 13398. 18 § 1153. « § 7459. 

2 ° § 12829. 2i § 12830. 22 § 12826. 23 § 12829. 24 § 10675. 

25 §§ 12921, 12922. 26 § I24i0. 27 § 12411. 


188 


CONSTABLES, MARSHALS, ETC. 


77. Pointing, etc., firearms, and injuring thereby.* 

78. Unlawfully assaulting or threatening another in a 
menacing manner, or striking or wounding another. 2 

79. Enticing girl to escape from, or trespassing, etc., on 
grounds of Girls’ Industrial Home . 2 

80. Whoever writes, prints, or publishes any false or 
malicious reports of or concerning another. 4 

81. Whoever knowingly sends or delivers any writing, 
for extorting money or other valuable thing, or containing 
willful or malicious threats of injury. 5 

82. Whoever maliciously or negligently sets fire to woods 
or prairies or grounds or maliciously permits fire to pass 
from his own ground to injure the property of another. 6 

83. Whoever maliciously, in the day-time, breaks and 
enters any building, car, etc., with intent to steal. 7 

84. Whoever breaks open a house, etc., in which any per¬ 
son dwells, and commits, or attempts to commit, personal 
violence. 8 

85. Whoever unlawfully enters the premises of another, 
to disturb bees, or carry away poultry, grain, or honey. 1 ' 

86. Whoever sells or detains military property of the 
state, or money or other property belonging to militia. 10 

87. A mortgagor of personal property who removes the 
same out of the state, with intent to defraud. 11 

88. Whoever, with intent to defraud, converts to his own 
use or otherwise disposes of any personal property of any 
description held by him in trust; or who removes the same 
beyond the county, with intent to defraud. 12 

89. Altering ear-marks or brands of domestic animals . 12 

90. Whoever poisons another’s domestic animal. 14 

91. Taking, using, etc., horse, mule, etc., without leave. 15 

92. Any person wrongfully taking bicycle, etc., with in¬ 
tent to use or to injure the same. 16 

93. Any person maliciously altering, defacing or re¬ 
moving number plate from bicycle, etc. 17 

94. Any person maliciously removing tire, or defacing. 
or destroying any part of bicycle, etc. 18 

95. Whoever knowingly sells diseased animals, allows 
them to run at large, or come in contract with other ani¬ 
mals. 19 

96. Whoever keeps a house which is an habitual resort 
of thieves, or permits a house which he has let to be so 
kept. 20 

97. Whoever steals illuminating gas. 21 

98. Whoever knowingly and maliciously alters or re- 

i 6 12422. 2 § 12423. 3 §§ 12838, 12839. 4 § 13383. 6 § 13385. 

6 § 12436. 7 § 12442 (88 v. 342)). « §§ 12443, 12444. • § 12445. 

§ 12882. ii § 12476. 12 § 12475. 73 § 13375. » § 13362. 

16 § 13379. 10 §§ 12514, 12515. 1 7 § 12516. 

i* § l‘>516 (90 v. 329). » § 13364. 20 § 12453. 

21 § 12452 . 


CRIMES AND OFFENSES, ETC. 189 

moves landmarks between this state and the state of 
Pennsylvania. 2 

99. W hoever displaces or removes any township corner 
posts.^ 

100. Whoever willfully injures, defaces, or removes 
United States coast survfey property. 4 

101. Whoever wantonly or maliciously throws or lays 
down fences or opens gates, the property of another. 5 

102. Whoever willfully injures or destroys any turnpike 
gate or toll board.® 

103. Whoever rides or drives faster than a walk over a 
bridge, having on it a caution notice, or whoever drives 
over such bridge more than twenty head of cattle at one 
time, or whoever refuses or fails to pay the usual toll for 
crossing* such bridge.? See paragraph 11. chapter 40. 

103a. Whoever refuses to give notice of accidents to the 
chief inspector of mines and to the coroner. 8 

104. An.y coroner who refuses to hold an inquest, in case 
of any accident.® 

105. Whoever draws or drives a vehicle on [along] a 
railroad track or its graded way, without the consent of 
the owner or controller of the railroad. 10 

106. Whoever wantonly or maliciously injures any water¬ 
craft. 11 

107. Whoever willfully injures or destroys certain aids 
to navigation, or whoever' moors any vessel to any such 
buoy, beacon, etc. 12 

108. Whoever maliciously injures or defaces any build¬ 
ing, or commits any trespass upon the inclosed grounds 
attached thereto, or any fixtures, or any inclosure or side¬ 
walk about the same. 13 

109. Destroying or defacing newspapers, etc., belonging 
to libraries. 14 

110. Demolishing guideboards, etc., on public road. 15 

111. Whoever, without lawful authority, destroys trees 
or crops. 1 ® 

112. Buying timber unlawfully cut. 17 

113. Manufacturing, or* permitting to be manufactured, 
unlawfully cut timber. 18 

114. Whoever trespasses' upon the lands of another, on 
the surface, or while mining. 19 

115. Defacing or destroying advertisements or notifica¬ 
tions, set up by authority of law, or by bridge owners. 20 

116. Posting bills, etc., on buildings, etc., without con¬ 
sent of the owner, is a misdemeanor; but this paragraph 
does not apply to* the posting of any notice required by 
any law to be posted. 21 

a § 12480. s § 12481. 4 § 12482. 

6 § 12483. 6 § 12484 (87 v. 329). 7 § 12485. 8 § 940. 

o 97G. io § 12542. 11 § 12486. 12 § 12637. 

is § 12487 14 5 12488. 15 § 12489. 10 § 12490. 17 § 12456. 

18 § 12457 19 §§ 12522 (91 224 ), 12527 .. ”§ 12491 21 § 12492 . 


190 


CONSTABLES, MARSHALS, ETC. 


117. Setting up obstruction on public sidewalk, or in any 
way obstructing the same. 5 

i 18. Whoever interferes with, destroys, or injures any 
pound, or sets at liberty any animal impounded. 6 

119. Aiding or attending a prize fight.? 

120. Public boxing exhibitions are unlawful; whoever 
takes part in such exhibition, or aids, assists, or attends 
same, is guilty of a misdemeanor, but nothing in this 
paragraph shall apply to the exercises of any athletic club, 
permitted by the sheriff or the mayor. 8 

121. Challenging to fight, or provoking breach of the 
peace. 9 

122. Whoever carries any pistol, bowie-knife, dirk, or 
other dangerous weapon, co,ncealed on or about his per¬ 
son. 10 

123. As to riots and rioting and persons injured thereat 
by officers, see Chapter 29. 

124. Whoever falsely perso,nates another, before any 
officer authorized to take acknowledgments of deeds, etc., 
with intent to defraud. 11 

125. Acting in a disorderly manner on a passenger 
train. 11 * 

126. Whoever attempts to bribe or to influence with re¬ 
gard to his duty, any juror, witness, etc., or any juror, 
witness, etc., who accepts bribe to influence him in the 
discharge of his duty . 1 2 

127. Whoever, either directly or indirectly, demands or 
receives any money or other thing of value for compound¬ 
ing or abandoning any prosecution for any crime or mis¬ 
demeanor. 13 

128. Conveying into prison things with intent to aid an 
escape, or conveying letters, etc., into or from a prison 
contrary to rules. 14 

129. Whoever, having lawfully the custody of a person 
charged with or convicted of an offense, voluntarily suffers 
such prisoner to escape, and whoever rescues such prisoner 
by force from the custody of such person, or from a jail or 
any place of confinement. 15 

130. Whoever conveys intoxicating liquors or drugs into 
a prison, except under the rules of the institution and 
upon written prescription of a regularly appointed physi¬ 
cian thereof. 16 

131. Whoever aids or assists any person lawfully con¬ 
fined in a jail to escape. 1 ? 

132. Whoever attempts to prevail on an officer to permit 
an escape. 18 

133. Whoever entices, etc., an inmate of a state penal 
or reformatory institution to escape, etc. 19 

s § 12639 (89 v. 234). 6 § 12493. ? § 12801. « 8 12802. 

9 § 12804 10 §12819. 11 § 12859. ”*8 12815 (89 v 51) 

12 § 12825. 12 § 12861. ” § 12835. ” § 12832’ 

”§ 12836. See also No. 173. ”§ 12833. ”§ 12834. ”§ 12838’ 


CRIMES AND OFFENSES, ETC. 


101 


134. If witness refuses to appear, or to be sworn, or to 
answer, he is guilty of a misdemeanor ; but this paragraph 
shall not prevent proceedings for contempt, nor require 
witness to be swor.n before his fees are paid. 0 See para¬ 
graph 8, Chapter 7. 

135. Whoever refuses to testify before the general as¬ 
sembly or a committee of either house, etc.? 

136. Endeavoring to intimidate witness, juror, or officer, 
or to obstruct the due administration of justice. 8 

137. Whoever attempts to corrupt a witness or influence 
Jiim with respect to his testimony. 9 

138. Whoever resists or abuses judicial or ministerial 
officers in the execution of their office. 10 

139. Any officer under the laws of this state who know¬ 
ingly asks, demands, or receives any fee or reward other 
than that allowed by law, to execute or do his official 
duty. 11 

140. Whoever, under color of office, injures, defrauds, or 
oppresses, or attempts to injure, defraud, or oppress any* 
person. 12 

141. Whoever, being a judge or other officer of court, 
excites or stirs up law-suits or quarrels with intent to 
injure any person. 18 

142. A judge of common pleas who acts as attorney, 
counsel, etc., before a justice of the peace. 14 

143. Whoever takes upon himself to exercise or officiate 
in any office or place of authority in this state without 
being lawfully authorized, and whoever, by color of his 
office, willfully and corruptly oppresses any person, under 
pretense of acting in his official capacity. 15 

144. Whoever impersonates an officer and falsely repre¬ 
sents himself to be such, etc. 10 

145. Any notary public acting as such after his term of 
office has expired. 17 

146. W T hoever, being a county comissioner, is guilty of 
misconduct in office. 18 

147. Any jailer who suffers his jail to become unclean, or 
who deals with prisoners less strictly than sentence war¬ 
rants. 19 

148. Any ministerial officer willfully neglecting or refus¬ 
ing to perform his duty in criminal cases, or delaying to 
execute legal process. 20 

« § 12843. 7 § 12845. 8 § 12866. 9 § 12837. 10 § 12858. 

Personal violence to officer’s person not necessary to the offense. 
Smith, in re., 14 N. P. (N.S.) 497. 

u § 12916. 72 § 12915. , : § 12847. 14 § 12848. 7 ® § 12925. 

7 « § 12860. 17 § 12926. 78 § 12920. 18 § 12849. 28 § 12850. 


192 


CONSTABLES. MARSHALS, ETC. 


149. Whoever refuses to aid officers in arresting, secur¬ 
ing, etc., a criminal and in preserving the peace. 1 

150. Any juror serving in any case before a justice of 
the peace who knowingly receives excessive fees.2 

151. Corporations may be prosecuted for violating 
§§ 12646, 12652, 12649, 12655, 12653, relating to nuisan¬ 
ces. 3 

152. Whoever maintains any nuisance of any kind, or 
whoever unlawfully diverts any water-course from its 
natural course, etc. 4 

153. Creating artificial ponds and stagnant waters. 5 

154. Whoever deposits dead animals, offal, etc., into or 
upon land or water, etc.; 5 or fails to burn or deeply bury 
animal dying of contagious disease. 7 

155. Whoever carries on the business of slaughtering, 
tallow-chandlery, etc., within one mile of Longview, or 
any other state benevolent institution. 8 

156. Whoever permits emptying of coal-dirt, petroleum, 
etc., into rivers. 5 

157. Whoever willfully obstructs any ditch, drain, or 
water-course, or diverts the water therefrom. 10 

158. Whoever maliciously befouls well, spring, etc. 11 

159. Whoever sells unwholesome provisions, 13 or feeds 
same to any animal used for human food. 13 

160. Whoever writes, prints, or publishes in any way an 
account of any lottery or scheme of chance of any kind or 
description, or in any way gives publicity to such lottery 
or scheme of chance. 14 

161. Whoever vends, sells, barters, or in any way dis¬ 
poses of any ticket of any kind, representing any interest, 
in any lottery, “policy,” or scheme of chance of any kind 
or description, whether located within or without thi3 
state. 15 

162. Whoever, publicly or privately, as owner or agent, 
establishes, opens, sets on foot, carries on, promotes, makes, 
draws or acts as “backer,” or “vendor,” for, or on ac¬ 
count of, or is any way concerned in, any lottery, “policy,” 
or scheme of chance of any kind or description, whether 
carried on within or without this state. 16 

163. Whoever keeps a room, building, arbor, booth,, 
shed, or tenement, or canal-boat or other water-craft, to 
be used or occupied for gambling, or knowingly permits 
the same to be so used or occupied, and whoever, being 
the owner of any room, building, arbor, booth, shed, or 
tenement, or canal-boat or other water-craft, rents the 
same to be so used or occupied. 17 

1 § 12857. Smith, in re., 14 N. P. (N.S.) 497. 

2 § 12828. 3 §§ 12657-8-9. 4 § 12646. 5 § 12652. 

a § 12649. 7 § 12780 (88 v. 18S). 8 § 12655. 

9 § 12647 ( )2 v. 287). 10 § 12658. » § '12654. 

72 § 12760-1. 13 § 12779. 14 § 18067. 15 § 13063. § 13064. 

77 § 13054. 


CRIMES AND OFFENSES, ETC. 


193 


164. Whoever suffers any gaming upon device for gain in 
his house, etc. 1 

165. Whoever keeps or exhibits for gain, or to win or 
gain money or other property, any gambling table, or faro 
or keno bank, or any gambling device or machine of any 
kind or description, under any denomination or name 
whatsoever or keeps or exhibits any billiard table for the 
purpose of betting or gambling, or allows the same to 
be used for any such purpose. 2 

166. Whoever contracts for options on grain, concerning 
the market, etc., or spreads false rumors to influence the 
price of commodities. 3 

167. Any tavern-keeper or keeper of a house of public 
resort who suffers any game whatever for a wager to be 
played thereat.* 

168. Whoever plays any game for a wager in any public 
place. 5 

169. Whoever induces a minor to play for money, or 
whoever makes a wager or bet with a minor on the result 
of a game of chance.® 

170. Whoever plays at any game for money, or makes 
any bet for money or property of value.? 

171. Whoever bets on any election, or sells or purchases 
pools on the result of any election held under the laws of 
this state. 8 

172. Whoever sells pools, or permits pools to be sold in 
any building, or registers wagers, or permits them to be 
registered, upon the result of any trial or contest of skill 
of man or beast. 9 

173. Whoever keeps, or causes to be kept, any bucket- 
shop, or whoever carries on the pretended buying or sell¬ 
ing of stocks, bonds, petroleum, etc., or whoever employs 
the telegraph to transmit information concerning such 
transactions. 10 

174. Any person who shall communicate, receive, or dis¬ 
play i,n any manner any pretended offer to buy or sell, with 
a view to any transaction. 11 

175. Whoever knowingly permits any of the illegal acts 
mentioned above to be done in his building, etc. 12 

176. Being found in a state of intoxication. 13 

177. Keeping a place where intoxicating liquors are 
sold in violation of law. 1 * 

178. Buying intoxicating liquors for intoxicated per¬ 
sons. 15 


1 § 13056. 

0 § 12964. 
u § 13076. 


2 §§ 13065, 13066. 3 § 13069. 4 § 13057. 

i § 13059. 8 § 13060. 9 § 13062. 

« § 13081. 13 § 13194. 14 § 13195 (92 v. 55). 


0 § 13058. 
io § 13071. 
io § 13198. 





194 


CONSTABLES, MARSHALS, ETC. 


179. Selling, etc., intoxicating liquors near religious 
society meeting, etc. 1 

180. Selling intoxicating liquors or keeping a house of 
ill-fame near the Columbus asylum for the insane, etc. 2 

181. Selling intoxicating liquors near any Soldier’s and 
Sailor’s Home, etc. 3 

182. Furnishing liquor to prisoners.* 1 See also No. 130. 

183. Whoever sells, or gives awav, any spirituous, vinous 
or malt liquors on any election day, or, being the keeper 
of a place where any such liquors are habitually sold and 
drank, fails on any election day to keep the same closed. 3 

184. Adulterating liquors, except for medicinal or 
mechanical purposes. 7 

185. Whoever overdrives, overloads, tortures, torments, 
deprives of necessary sustenance, or unnecessarily or 
cruelly beats or needlessly mutilates or kills any animal, 
or impounds or confines any animal in any place and fails 
to supply the same during such confinement with a suffi¬ 
cient quantity of good, wholesome food and water, or 
carries in or upon any vehicle, or otherwise, any animal 
in a cruel or inhuman manner, or who keeps cows or other 
animals in any inclosure without wholesome exercise and 
change of air, or feeds cows on food that produces impure 
and unwholesome milk, or abandons to die any maimed, 
sick, infirm, or diseased animal. 3 

186. Whoever engages in or is employed at cock-fighting, 
dog-fighting, bear-baiting, pitting one animal against an¬ 
other of the same or of a different kind, or any similar 
cruelty to animals, or receives money for the admission of 
any person to any place kept for any such purpose, or 
uses, trains, or possesses a dog or other animal for the 
purpose of seizing, detaining, or maltreating any domestic 
animal. 9 

187. Selling or usi,ng adulterated coal oil, or coal oil 
that will flash at a less temperature than one hundred and 
twenty degrees Fahrenheit. 10 

188. Using untested petroleum oil. 11 

189. Selling empty oil vessels with stamp on. 12 

190. Selling or giving away poisons without being prop¬ 
erly marked. 13 

11 13208. 2 § 13206. 3 §§ 13203, 13202 (90 v. 143). 

4 § 12846. 5 §13197. 7 § 13213. 8 § 13376 (89 v. 140). 

’ §§ 13378, 13478. 10 § 12571. 11 § 12573. 12 § 13178. i* § 12667. 


CRIMES AND OFFENSES, ETC. 


195 


191. Depositing poison in thoroughfares. 1 

192. Discharging firearms on lawns, etc., or within gun¬ 
shot of any occupied house. 2 

193. Any county auditor who fails to make report to 
state auditor.3 

194. Any county auditor who fails to make settlement 
with the treasurer, or who willfully fails to perform any 
duty required of him by law. 1 

195. Any county recorder w r ho records plats before ap¬ 
proval. 5 

196. Any person who offers bribe for recommending text¬ 
books, etc., or any member of a board of education who 
votes for certain relatives prescribed by law for teacher. 6 

197. Any municipal officer who is interested in corpora¬ 
tion contracts, or acts as superintendent of corporation 
work. 7 

198. Any justice of the peace who fails to make and set 
up lists of unclaimed moneys in his hands. 6 

199. Any justice of the peace who refuses to deliver up . 
docket, etc., on demand by the person entitled thereto. 6 

200. Riding or driving horse or any other domestic ani¬ 
mal into or through inclosures of railroads, or suffering 
any fence to remain down or open longer than is neces¬ 
sary. 10 

201. Climbing upon railroad cars, unless in compliance 
with law. 11 

202. Smoking, using profane language, quarreling, taking 
dog on car without permission, or failing to pay the 
proper fare. 12 

203. Whoever takes, receives, hires, employs, uses, ex¬ 
hibits, or in any manner, or under any pretense sells, ap¬ 
prentices, gives away, lets out, or otherwise disposes of, to 
any person, any child under the age of fourteen # years, for 
or in the vocation, occupation, service, or purpose of sing¬ 
ing, playing on musical instruments, rope or wire-walking, 
dancing, begging or peddling, or as a gymnast, contor¬ 
tionist, rider, or acrobat, or for or in any obscene, indecent, 
or immoral purpose, exhibition, or practice, or for in any 
business exhibition, or vocation injurious to the health or 
dangerous to the life and limbs of such child, or causes or 
procures or encourages any such child to engage therein, 
or causes or permits an such child to suffer, or inflicts 
upon it unjustifiable physical pain or mental suffering, or 
willfully causes or permits the life of any such child to 
be endangered, or its health to be injured, or such child 


12663. 

» § 12912 (94 v. 406). 

12817. 

8 $ 12852. 

12888. 

» § 12853. 

12887. 

*» § 12544. 

12928. 

n § 12543. 

12931. 

is § 12816. 


196 


CONSTABLES, MARSHALS, ETC. 


to be placed in such situation that its life may be en¬ 
dangered or its health injured, or has in custody any such 
child for any of the purposes aforesaid. 13 

204. Whoever tortures, torments, or willfully deprives of 
necessary food or shelter, any person; or whoever cruelly 
uses or deprives of necessary food or shelter, any child, or 
children. 14 

205. Whoever sells, barters, or gives to any minor, under 
fourteen years, any firearm of any description whatever; 
or whoever permits any firearm of which he has charge or 
control to be used by such minor. 15 

206. Whoever sells toy pistols to minors under fourteen 
years of age. 16 

207. Whoever entices or persuades a married man or 
woman to renounce the marriage covenant, to join any 
sect having such principles of renunciation. 1 ? 

208. Whoever administers an anaesthetic without the 
presence of a witness. 13 

209. Whoever practices dentistry without a diploma, or a 
certificate of qualification. 16 

210. Whoever takes, sells, etc., any negotiable instru¬ 
ment, intended as a note for patent right, without the 
words, “Given for a patent right,” on it. 20 

211. A male person, physically able to perform manual 
labor, who has not made reasonable effort to procure em¬ 
ployment, or who has refused to labor at reasonable prices, 
who is found in a state of vagrancy, or practicing common 
begging. 21 

212. Whoever connects any bridge to the Ohio shore of 
the Ohio river, with an unbroken span of less than four 
.'hundred feet over the main channel. 22 

213. Any tavern-keeper who permits rioting, drunken¬ 
ness, etc., in his house. 23 

214. Whoever, being the owner -or keeper of a billiard 
saloon or a billiard table, permits a minor under the age 
of eighteen years to play in such saloon or upon such 
table. 24 

215. Whoever sells cigarettes, etc., to minors under 
eighteen years of age. 25 See par. 365. 

216. Any person engaged in the business of pawnbroker, 
who fails to take out a license, or receives and advances 
money upon any property pledged, and fails to keep a reg¬ 
ister thereof, or of any property bought, as required by 
law, or who refuses to exhibit such register, or any prop- 


43 § 12968. 

14 § 12428. 

15 § 12967. 
40 S 12966. 

47 § 13042. 

48 § 12678. 

49 § 12713. 


28 § 13149. 
24 § 13409. 

22 § 13406. 

23 § 12813. 
» § 12962, 
26 § 12965. 


CRIMES AND OFFENSES, ETC. 


197 


erty pledged, or property bought, if in his possession, to 
the chief of police or to a police officer lawfully deputed 
to inspect the same. 26 

217. Whoever, being the keeper of a public house, keeps 
or permits to be kept, any ball or .nine-pin alley, or is in¬ 
terested in any ball or nine-pin alley upon the premises of 
another. 27 

218. Whoever suffers any Canada thistles to grow on his 
land. 28 

219. Whoever, except common carriers, imports into the 
state any cattle infected with Spanish fever, or liable to 
impart such disease to other cattle. 29 

220. Whoever, except in case of invasion by a foreign en¬ 
emy, or to suppress insurrection, or for the purpose of 
raising the body of a person drowned, or for blasting or 
removing rock, fires any cannon, or explodes any gun¬ 
powder on a public street. 80 

221. Exhibiting puppet-shows, etc., for money. 81 

222. Exhibition of any curiosity, or sets up swing, etc., 
at fairs, without written permission of board of directors. 82 

223. Whoever plays bullets, or runs horses, or shoots 
within the limits of any municipal corporation. 88 

224. Whoever, being the owner or operator of any mill 
pear a public highway, fails to build a covert to his water 
wheel. 84 

225. Whoever, owning or controlling any hall, theater, 
school-house, etc., permits the same to be used for the 
purpose of public assemblies or schools, without the cer¬ 
tificate required by law, that the same is provided with 
speedy and safe ingress and egress, or whoever, being 
owner, lessee, or proprietor of such building, obstructs the 
aisles or hallways thereof. 85 

226. Whoever advertises, prints, publishes, etc., or causes 
to be advertised, printed, published, etc., any circular or 
pamphlet, etc., with intent to procure, or to aid in pro¬ 
curing, any divorce, either in this state or elsewhere. 86 

227. Whoever, being a duly licensed and appointed auc¬ 
tioneer, neglects or refuses "to exhibit any quarterly ac¬ 
count, or neglects or refuses to make payment of the 
proper duties to the treasurer, within the time prescribed 
by law. 87 

228. Whoever, being a duly appointed and licensed auc¬ 
tioneer, farms out his office to another, or derives profit or 


13400. 

« § 13394 (89 v. 135). 

13396. 

33 § 12635. 

7152. 

3 * § 12601. 

13374. 

35 $ 12574. 

12636. 

8« § 13412. 

13395. 

s? §§ 13404, 5877. 


198 


CONSTABLES, MARSHALS, ETC, 


advantage from the sales made by another, except his 
clerk. 38 

229. Whoever sends or assigns claims to be collected by 
attachment in courts outside the state. 33 

230. Whoever compels, or seeks to compel any employe 
to purchase goods or supplies of any particular person, 
firm, or corporation, or whoever sells goods or supplies of 
any kind, or pays the wages of labor in goods or supplies, 
at higher prices than the reasonable or current market 
value in cash. 40 

231. Trespassing by employes of telegraph and tele¬ 
phone companies. 41 

232. Keeping a place for the sale and use of opium, or 
resorting to any such place for the purpose of smoking 
opium. 42 

233. Unlawfully wearing the Grand Army, or other 
military badge. 43 

234. Unlawfully wearing the insignia of civic or relig¬ 
ious societies. 44 

235. Unlawful obtaining of registry or transfer in any 
herd book, or knowingly giving a false pedigree of any 
jersey animal. 45 

236. Whoever cohabits with another in a state of adult¬ 
ery or fornication. 40 

237. Keeping or letting houses of ill-fame, assigna¬ 
tion, etc. 47 

238. Whoever, being over fourteen years of age, willfully 
makes any indecent exposure of his person in any public 
place, or in any place where there are other persons to be 
offended or annoyed thereby, or utters or uses any ob¬ 
scene or licentious language or words in the presence or 
hearing of any female. 48 

239. Sending obscene literature, etc., by mail, making 
or giving information where to obtain the same, etc. 43 

240. Advertising secret drugs, medicines, etc., for the 
use of females. 50 

241. Selling or giving away secret drugs for preventing 
conception or procuring abortion. 54 

242. Profane swearing. 52 

243. Sporting, hunting, fishing, shooting, etc., on Sun¬ 
day. 53 

244. Exhibiting theatrical or dramatic performance, etc., 
playing base ball, or ten-pins, or similar games; keeping a 

a* §§ 13405, 5874. « § 13024. 

v i oor*o / n i „ oni \ 


§ 12862 (91 v. 361). 
«§ 12944 (88 v. 443). 


« $ 12530. 
42 § 12679. 
« § 1G363. 
** § 13164. 
« | 13162. 



50 § 13034. 
C1 § 13033. 
02 § 13390. 
53 | 13048. 


CRIMES AXI) OFFENSES, ETC. 


199 


disorderly house of resort, selling or giving away spirit¬ 
uous liquors in building adjacent to such performance, or 
game, on Sunday. 5 * 

245. Engaging in common labor on Sunday. 55 

246. Whoever assists in any experiment upon body un¬ 
lawfully taken from its place of sepulture. 55 

247. Whoever receives, at medical college, human body 
bearing marks of violence. 57 

248. Whoever, being lawfully possessed of any corpse 
held for dissection, unlawfully uses the same for any 
purpose. 55 

249. Whoever, without lawful authority, injures grave¬ 
stones, monuments, or cemetery grounds. 55 

250. Shooting on or near cemeteries. 55 

251. Racing near Spring Grove cemetery. 5 * 

252. The publication, exhibition, etc., of immoral or in¬ 
decent pictures.62 

253. Any person giving or participating in any indecent 
or immoral exhibition of any part of the human form. 53 

254. Attempting to intimidate electors or judges at pri¬ 
mary elections. 5 * 

255. Any candidate at election who pays or promises to 
pay bribes for influence or votes. 55 

256. A supervisor or judge who willfully omits his duty 
at elections, or a person who votes fraudulently. 55 

257. Bribing, corrupting, or intimidating electors. 57 

258. W T hoever votes, not being a resident of the precinct 
twenty days. 55 

259. Whoever votes, without having had a residence in 
the state of one year, or without being twenty-one years of 
age, or without being a citizen of the United States, or 
being disqualified by a conviction of crime and not par¬ 
doned. 59 

260. Whoever counsels or advises another to give an 
illegal vote. 70 

261. Any judge who postpones counting votes, or who 
adjourns from place of voting, or who removes ballot-box. 7 * 

262. Any judge who knowingly sanctions or receives an 
illegal vote, or receives the vote from any person who 
refuses to answer certain questions, or who refuses to take 
the oath prescribed by law, or sanctions the* refusal of any 
other judge to administer oaths, or sanctions the refusal of 
a legal vote, or refuses to admit the candidates to be 


«* § 13049. 

05 § 13044. 

5» § 13391. 

57 § 12869. 

“ $ 12693. 

59 § 12499 <92 v. 199). 
§ 12818. 

§ 12S22. 

62 » § 13039. 


03 § 13040. 

§ 13336. 
05 § 13316. 
«" 8 13325. 

§ 13319. 
cs § 13254. 
«»§ 13251. 
79 § 13259. 
77 § 13285. 


200 


CONSTABLES, MARSHALS, ETC. 


present at such an election, or any judge or clerk who 
willfully neglects any duty relating to elections, or who is 
guilty of corrupt conduct. 72 

263. Marking ballots, or printing, distributing, or voting 
ballots unlawfully written or printed. 73 

264. Whoever knowingly sells, or permits any one in his 
employ to sell property and makes'or gives false weight or 
measure. 7 * 

265. Whoever takes illegal toll at mill. 75 

266. Whoever sells articles having forged brands, stamps, 
or labels affixed. 76 

267. Selling stone coal otherwise than by the prescribed 
weights or measures. 77 

268. Making or using false gas meters with intent to 
defraud. 73 

269. Whoever fails to mark weights on packages sold by 
weight- or whoever fraudulently transfers brands, or who¬ 
ever fraudulently repacks branded packages. 79 

270. Using barrel, cask, or other vessel with private 
brand affixed, for the purcose of deceiving. 39 

271. Any person obtaining food or lodging from an inn¬ 
keeper, with intent to defraud. 31 

272. Any partner who is guilty of fraud in the affairs of 
partnership.82 

273. Any medical examiner for an insurance company 
who knowingly makes false statements to the company. 33 

274. Making fraudulent transfers to defeat creditors. 3 * 

275. Adulterating or selling adulterated domestic wines. 33 

276. Adulterating or selling adulterated liquors. 36 

277. Any person selling wool washed on sheep’s back or 
otherwise, containing unwashed tag-locks, or unwashed 
wool ot any kind, or black wool, or parts of buck’s fleeces, 
or any substance foreign to the fleece, that is calculated to 
defraud. 37 

278. Forging or altering railroad and toll-bridge tickets, 
checks, etc., or having in possession or uttering same. 33 

. 279. Whoever restores canceled checks, etc., or has the 
same in possession, or offers them for sale, or sells, or offers 
for sale, any tickets, etc., which should have been canceled; 
or whoever, being a conductor, purposely fails to cancel 
tickets, etc. 39 

280. Maliciously altering, defacing, destroying any public 
record or document. 90 


72 § 12289 

82 § 13142. 

73 § 13265. 

83 § 13132. 

'* § 13106. 

8 *§ 13126. 

73 § 13110. 

85 5 12772. 

70 § 13111. 

80 § 12676. 

77 § 13107. 

87 § 13114. 

78 § 13127. 

88 § 13086. 

79 § 13128. 

89 § 13087. 

80 § 12773. 

90 § 13088. 

81 1 13131. 


CRIMES AND OFFENSES, ETC. 


201 


281. Forging brand, stamp, label, or trade-mark, on any 
manufacture, compound, etc. 9 * 

282. Having in possession, or using fraudulently, any im¬ 
itation, die, stamp, brand, etc.; or using fraudulently any 
genuine die, stamp, brand, etc. 9 2 

283. Any person injuring, etc., gas-works, etc., at peni¬ 
tentiary.^ 

284. Having in possession dangerously diseased animals, 
or neglecting to suppress said diseases, etc. 9 * See para¬ 
graph 45, Chapter 3. 

285. Any person who shall deprive any person of his 
civil rights. 95 

286. Any vendor of property conditionally sold who re¬ 
takes possession of property without repaying certain part 
of price paid. 96 

287. Any officer in public institution who creates a 
money deficiency in such institution. 197 

288. Not providing seats for female employes, as 
required by law. 96 

289. Any manufacturer who fails to report accidents to 
chief inspector of workshops. 99 

290. Trespassing upon lands bordering on fish-pond, for 
purpose of catching fish, or buying or receiving fish so 
caught, or poisoning fish, or letting water out of pond, or 
tearing down or defacing sign-board along such pond. 1 

291. Any manufacturer who refuses to furnish sample of 
food for analysis; or any person who manufactures or 
offers for sale any adulterated food or drug. 2 

292. Any person who uses false or fraudulent stamps or 
labels on food of any kind, in cans or jars . 6 

293. Whoever manufactures or sells adulterated candy; 
or any manufacturer who refuses to furnish samples of 
candy for analysis.* 

294. Whoever manufactures or sells adulterated vinegar, 
or any vinegar containing injurious ingredients; or who¬ 
ever fails to properly label barrels, etc., containing vinegar. 5 

295. Any person manufacturing or selling artificial but¬ 
ter or cheese, etc., without its being properly stamped. 6 

296. Any person manufacturing out of any oleaginous 
substance articles designed to be sold as pure butter or 
cheese. 7 

»i § 13089. 

82 § 13091. 

$ 12494. 

<*'§§ 1106, 1107, 12779, 12780, 12781, 13364, 13365, 13370-13374. 

§ 12940. 2 § 12758. 

80 § 12464. 3 § 12776. 

87 § 12923. 4 § 12762. 

*» § ioil. 5 § 12774 (92 v. 100). 

89 § 1024. c § 12742. 

i§ 12525. 7 § 12740. 


202 


CONSTABLES, MARSHALS, ETC. 


297. Any person dealing in any manufactured substitute 
for butter or cheese, who neglects to display card with 
“oleomargarine,” or “immitation cheese,” on it. 8 

298. Any keeper of hotel, etc., who sells or uses oleomar¬ 
garine, etc., who neglects to display card stating same. 8 

299. Fraudulently packing or shipping butter or cheese.io 

300. Fraudulently selling diluted milk. 11 

301. Selling milk falsely labeled. 12 

302. Feeding cows on unhealthy food. 18 

303. The fraudulent use or sale of condensed milk. 14 

304. The use of oleomargarine or imitation cheese in any 
state, charitable, or penal institution. 1 ® 

305. Whoever sells adulterated or skimmed milk as 
pure. 16 

306. Whoever manufactures or sells adulterated, etc., 
wines. 17 

307. Whoever manufactures dynamite without license, or 
stores the same within the limits of any municipal corpora¬ 
tion, or transports the same without being properly 
labeled. 18 

308. Whoever sells dynamite to minors, or sells the same 
without being properly labeled, or neglects to keep account 
of sales. 19 

309. The unlawful sale of morphine. 29 

310. The unlawful sale of goods made by convicts of 
other states. 21 

311. Any person who uses bottles or boxes, etc., of manu¬ 
facturer of soda water, mineral water, etc., without con¬ 
sent of owner. 22 

312. Whoever sells intoxicating liquors to a minor, ex¬ 
cept on the written order of his parent, or physician. 28 

313. Unlawful liquor selling in local option townships. 24 

314. Attempting to influence officials in selecting jurors, 
or altering certificates of same. 25 

315. Any person summoned as juror, who fails to appear 
or any juror, who, being qualified, refuses to serve. 26 

316. Any owner of oil-well, who fails to encase same, or 
who fails to plug abandoned well. 27 

317. Trespassing on state lands. 28 

318. Any member, officer, or employe of board of public 
works having an interest in any canal contract. 29 

319. Any person who digs ditch or drain near, or 
removes earth from canal. 80 


8 § 12731. 

9 § 12732. 

10 § 12749. 

11 § 12726. 
13 § 12728. 
I 3 § 12729. 
i* $ 12725. 
is § 12754. 


i® § 12719. 
ii § 12767. 
I 8 § 12536. 
i® § 12535. 

20 S 12674. 

21 § 6213. 

22 § 13169. 

23 '§ 12961. 


24 § 13329. 

25 § 12829. 
20 § 11441. 

27 5 6312. 

28 § 15306. 

29 § 12914. 

30 § 12501. 


CHIMES AND OFFENSES, ETC. 


203 


320. Any person who willfully puts or causes to be put, 
any dead animal into any canal, or slack water pool belong¬ 
ing 1 to the state. 31 

321. Any person who constructs any lock, bridge, dam, on 
or across any public navigable water, without license 
therefor. 32 

322. Any person who willfully injures or destroys any 
lock, bank, waste weir, dam, aqueduct, or culvert, belong¬ 
ing to any state canal.33 

323. Any person who knowingly signs and delivers a 
false bill of lading. 3 * 

324. Making false statement to obtain soldier’s relief. 3 ^ 

325. Any person who uses trade-mark of lumber dealer 
without his consent. 36 

326. Any person who removes or destroys trade-mark of 
timber dealer, or who unlawfully carries away timber 
stamped, or who unlawfully uses such trade-mark. 3 ? 

327. Any trespasser on fair grounds or other inclosures. 33 

328. Any person owning a building more than two stories 
high, or who, having control thereof, permits it to be used 
for the purposes of a boarding-school, without havi,ng pro¬ 
vided it with safe means of escape in case of fire. 39 

329. Any person who maliciously tampers with gas 
pipes at Ohio penitentiary.*o 

330. Any owner or agent of any stallion or jack, who 
permits the same to serve a mare within thirty feet of any 
public street or alley in any municipal corporation.^ 

• 331. Any minor who enters place where intoxicating 
liquors are sold or offered for sale, or any person who keeps 
or has in charge any place where intoxicating liquors are 
sold or offered for sale, who permits such minor to enter 
and remain therein.42 

332. Any elector who exposes his ballot, or falsely says 
he can not mark it, or any election officer who deceives any 
elector in marking it, or any person who interferes with 
any elector.43 

333. Any person who falsely makes, defaces, or destroys, 
or who unlawfully signs, files, or suppresses any certificate 
of nomination, or any letter of withdrawal, or who forges 
the official indorsement on any ballot, or who marks, de¬ 
stroys, or defaces any ballot, or who takes, or removes, or 
has any ballot outside of inclosure before the close of polls, 
or who willfully delays the delivery of ballots.44 

334. Whoever, being an elector, directly or indirectly, by 
himself or through any other person, receives any bribe.45 


31 § 12649. 
33 § 12504. 

33 § 12505. 

34 § 8993-4. 

35 § 2935. 


38 § 12530. 
33 § 13157. 

38 § 12519. 

39 § 12575. 

40 § 12494. 


« § 13114. 

42 § 12960. 

43 '§ 13294. 

44 § 13296. 
« § 13314. 



204 


CONSTABLES, MARSHALS, ETC. 


335. Any person, officer or employe of any loan or build¬ 
ing association, who fails to make the reports required by 
law, and any person who aids or assists any association to 
do business contrary to law. 46 

336. Whoever manufactures or sells, etc., imitation 
butter or cheese. 47 

337. Any person, officer, etc., who imitates or displays 
for sale any imitation of label, mark, name, brand, or 
device filed with secretary of state, without proper per¬ 
mission. 48 

338. So employing child under sixteen years of age as to 
endanger life, limb, health, or morals. 49 

339. Any parent abandoning, neglecting to provide for, 
etc., any child under sixteen years of age. 30 

340. Whoever fails properly to label poisonous substances 
sold at drug store, etc. 31 

341. Whoever maliciously injures or tampers with any 
gas-pipe, fixture, etc. 32 

342. Any person, etc., permitting stallion to serve mare 
Within thirty feet of street or alley. 33 

343. Any minor who enters any saloon, beer garden, or 
other place where intoxicating liquors are sold, except 
drugstore. 34 

344. Any keeper, etc., of such saloon, beer garden, etc., 
who permits minor under 18 years of age to be in such 
place. 33 

345. Any telegraph operator refusing or neglecting to 
receive or send telegram in cases of accident to, or collision, 
of trains. 36 

346. Selling or giving away intoxicating liquor in house 
of ill-fame. 37 

347. Any person in charge of any street car violating 
law as to stopping car at railway intersections, etc. 38 

348. Any manufacturer of cheese who shall sell or dis¬ 
pose of same without stamping it according to law. 39 

349. Any person engaging in the business of barbering on 
Sunday. 60 

350. Any person preventing employe from joining labor 
organization. 61 

351. Any person or firm using unlicensed vehicle, or 
neglecting to provide license for same. 62 

352. Any person in charge of railroad who fails to 


4C § 13192. 

55 § 12958. 

« § 12741. 

§ 9184. 

« § 13102. 

57 § 13199 (88 v. 567). 

49 § 13004. 

58 § 9124 (88 v. 581). 

so § 12970. 

69 § 12742. 

51 § 12667. 

«o $ 13047 (89 v. 252) ; 

52 § 12512. 

fll § 12943 (89 v. 269). 

63 § 13414. 

e 2 § 8937. 

5 * § 12957. 


CRIMES AND OFFENSES, ETC. 


205 


comply with the law regulating' the rise from station plat¬ 
form to car steps, thereby causing personal injury. 63 

353. Any person owning or Laving charge of stairs in 
buildings, tenements, etc., failing to provide hand-rails for 
stairways. 64 

354. Any person or corporation employing labor in the 
erection or repair of building, furnishing improper or in¬ 
sufficient scaflolding. 65 

355. Any paroled prisoner who violates his parole. 66 

356. Any agent, owner or tenant in possession, failing 
to provide fire-escapes. 67 

357. Any perso.n violating provisions as to petroleum oil, 
natural gas, and mineral water wells. 66 

358. Any dealer, company, etc., offering for sale wine 
not properly labeled. 69 

359. Any owner, agent, etc., of building in construction 
who fails to provide counter floors for safety of employes. 70 

360. Any married man representing himself as unmar¬ 
ried. 77 

361. Any person docking tail of horse, or pulling out 
[hair of foretop, mane, or withers. 72 

362. Any person hunting, shooting, killing game, selling 
or giving away intoxicating liquors, near township park 
without proper permission. 73 

363. Any person, agent, officer, etc., failing to provide 
screens for street cars. 7 * 

364. Any shanty-boat owner who anchors, etc., any 
shanty-boat on real estate of another without permission. 76 

365. Any person, firm, etc., engaged in cigarette business 
who fails to display receipt required by law, sells adulter¬ 
ated cigarettes, induces sales by pictures, etc., or sells to 
minors, etc. 76 

366. Any judge or clerk of election who fails to perform 
his duties as such according to law. 77 

367. Any person or officer violating provisions as to com¬ 
pulsory school attendance. 78 

368. Any person engaged in hazing. 79 

369. Whoever, in measuring, etc., wheat uses any meas¬ 
ure other than the standard half bushel. 80 

370. Any person who shoots, throws, etc., by means of 
air guns, or other implement, any hard substance upon any 
street, alley, main or public place. 87 

371. Any person failing to destroy or selling fruit trees 
infected with black-knot, yellows, etc. See par. 385. 


on § 2174. 

§ 1037. 
« s $ 12647. 
« § 5S02. 


« § 8937 (89 v. 347). 

§ 1006 (89 v. 375). 
68 § 12594 (89 v. 380). 


to § 12576. 
7i § 13146. 
’a § 1.3377. 
73 § 12820. 

$ 12788. 
75 § 12529. 


77 § 13356. 

78 8 12974. 
7» § 12417. 
so § 6414. 
si § 12624. 


76 § 12788 (90 v. 220), 


205a 


CONSTABLES, MARSHALS, ETC. 


372. Any person unlawfully killing, transporting, pos¬ 
sessing, etc., quail. 82 

373. Any person violating law regulating manufacture 
and sale of oleomargarine. 83 

374. Whoever unlawfully engages in the practice of 
veterinary medicine or surgery. 84 

375. Any officer neglecting or refusing to perform duty 
as to depositaries of public funds. 85 

376. Manufacturing clothing, cigars, etc., in close living 
rooms (“sweat-shops”) ." 

377. Wearing of big hats in theaters, etc. 87 

378. Not protecting against dust-producing machines. 88 

379. Not complying with excise tax laws. 89 

380. Frauds as to making or selling sterling or coin 
silver goods." 

381. Unlawfully camping on road or land adjacent. 94 

382. Unlawfully displaying foreign flags on public build¬ 
ings. 92 

383. Whoever engages in playing public game on 
Decoration Day within one mile of the speaker’s stand 
during the rendition of the program. 93 

384. Injuring pneumatic tires with tacks, etc., on streets, 
etc. 94 

385. Keeping or selling fruit trees infected with “yel¬ 
lows,” etc. 95 

386. Being guilty of corrupt practices at elections (Gar¬ 
field law)." 

387. Whoever unlocks or opens a jury wheel, except by 
order of court, etc. 97 

388. Whoever, being an officer of a corporation, refuses 
to comply with the requirements of law. 98 

389. Failure of a county officer to file a report and 
pay money. 98 * 

390. Neglect or refusal to perform duty by road super¬ 
intendent." 

391. Whoever neglects or violates the law relating to 
the merit system."* 

392. Whoever neglects his duty as a registrar, etc. 4 

393. Whoever, being a superintendent of banks, etc., who 
fails to keep secret information obtained in the course of 
the examinations, etc. 2 

394. Whoever, being a principal, etc., of a public or 
parochial school, neglects to instruct the pupils in fire 


drill. 3 


§ 1412. 

S3 § 12733. 

§ 13382. 
s5 § 2743. 
88 § 1020 . 

87 § 13448. 

88 § 1027. 

89 § 13411. 


80 § 13113. 
91 § 13397. 


§ 12395 (92 v. 89). 


w § 12949. 

94 § 12517. 

95 § 1109. 

§ 13323-1 
97 § 12S67. 


9s §§ 12870. 12872, 


nS * § 12889. 
99 § 12891. 
° 9 * § 12895, 

1 § 12897. 

2 § 12898. 

3 § 12900. 


CRIMES AND OFFENSES, ETC. 


2(T>ft 


395. Soliciting campaign contribution from mine in¬ 
spector.* 

396. Policeman failing to deposit stolen property, etc. 5 

397. Divulging school examiners’ questions. 6 

398. Payment in script and certain deductions from 
wages prohibited. 7 

399. Removing or threatening to remove employe for not 
signing local option petition. 6 

400. Discharging employe for refusing to labor on elec¬ 
tion day.® 

401. Life insurance companies discriminating against 
colored persons. 16 

402. Employing children under age and the school cer¬ 
tificate required by law. 11 

403. Neglecting to instruct as to the dangers of fire. 12 

404. Penalty for pupil joining fraternity. 16 

405. Teacher, principal or superintendent failing to give 
notice of fraternity in school. 1 * 

406. Board of education to investigate charges of exis¬ 
tence of. 15 

407. Suspension of pupils. 16 

408. Officers or agents interested in contracts. 17 

409. Officials forbidden to be interested in. 18 

410. Penalty for violating rules for valuing personal 
property. 19 

411. Remission or illegal collection of fees. 29 

412. Officer receiving compensation for making appoint¬ 
ments. 21 

413. Employing certain minors during school session. 22 

414. Penalty attaching to parents or guardians who 
have knowledge of minors between eight- and fourteen 
years of age who have not passed to the fifth grade, etc., 
upon notice from the truant officer, fails to cause such 
minor to attend a public, private or parochial school, etc. 23 

415. Officer, principal, teacher, or other person, neglect¬ 
ing to perform the duty imposed upon him bv law relating 
to compulsory education or employment of minors, for 
which a specific penalty is not provided by law. 2 * 

416. Employing mi,nors without agreeing as to ages, 
etc. 25 


4 § 12936. 

5 § 12937. 

« § 12939. 

~ § 12945. 

8 § 12943. 
n § 12949. 

’o §§ 12954, 12956. 
u i?§ 1?975. 12994. 
32 § 12901. 
is 5 12906. 

14 § 12907. 


15 § 12908. 
i« § 12909. 
ii §§ 12910, 12911. 

38 § 12912. 

3 » §§ 12924-1, 12924-3, 12924-4. 

20 § 12930. 

21 § 12935. 

22 § 12976. 

23 § 12977. 

24 §§ 12982, 12983. 

25 § 12991. 


2050 


CONSTABLES, MARSHALS, ETC. 


417. Working boys under 16 or girls under 18 years of 
age more than eight hours a day, etc. 20 

418. Employing boy under 18 years of age as a messenger 
before six o’clock in the morning or after the hour of nine 
in the evening. 2 ? 

419. Whoever fails to keep a record of minors 
employed. 28 

420. Whoever employs or permits a girl under 16 years 
to work where compelled to stand constantly. 2 *) 

421. Whoever prevents a female visitor, as provided by 
law from entering establishment at reasonable hours for 
the purpose of making inspection thereof. 8 *) 

422. Neglect to provide for child or pregnant woman. 31 

423. Abandoning child or pregnant worna.p. 32 

424. Neglect to pay for ■ keeping child in children’s 
home. 33 

425. Persons confined in the penitentiary to be credited 
with 40 cents per day, to be paid to trustee, etc. 34 

426. Pandering defined and penalty therefor. 33 

427. White slave traffic a,nd penalties. 38 

428. Providing for the issuance of search warrant. 3 ? 

429. Penalties for disseminating immoral literature. 38 

430. Penalties for giving immoral exhibitions; also, 
lewd pictures. 38 

431. False statements in writing misleading others to 
their prejudice. 40 

432. Warehouses issuing receipts for goods not 
received. 41 

433. Issuing receipt containing false statement. 42 

434. Duplicate receipt to be so marked. 43 

435. Negotiable receipt must state ownership. 44 

436. Delivering goods without first obtaining negotiable 
receipt. 45 

437. Unauthorized use of timber dealer’s trade-mark. 40 

438. Negotiating receipt with intent to deceive. 4 ? 

439. Soliciting membership in unauthorized fraudulent 
beneficiary association. 48 

480. Frauds of officers or medical examiner of fraternal 
benefit association. 48 

441. Fraud by certificate holder; 50 officer suppressin<»‘ 
facts. 51 

442. Unlawful to perform dramatic composition without 
consent of owner. 52 


29 § 12906. 

27 8 12996-1 

28 § 12998. 

'§ 13005. 

30 § 13006. 
:, i 8 13008. 

32 '§ 13009. 

33 § 13012. 

34 § 13019. 


35 §§ 13031-1-2-3-4-5. 
38 § 13003-6. 

37 § 13031-8. 

38 §§ 13038, 13039. 


S3J a ouoo, 

39 § 13041. 

40 § 13105-1 

41 § 13118. 

42 § 13119. 

43 § 13120. 


44 § 13121. 

45 8 13122. 

48 § 13156. 

47 § 13123. 

48 § 13139 . 

49 8 13140. 

80 § 13141. 

81 8 13141-1 

82 § 13148. 


CRIMES AND OFFENSES, ETC. 205 d 

443. Selling bonds, etc., for companies not complying 
with law.53 

444. Adulteration of materials used in the manufacture 
of crockery ware. 54 

445. Fraudulent filing of labor union trade-mark. 55 

446. Wearing badge or button of certain organizations, 
G. A. It., etc. 5 ® 

447. Misrepresentations inducing lapse, forfeit, etc. 5 ? 

448. Misrepresentation in advertising by insurance 
company. 5 ® 

449. Advertising not corresponding with verified state¬ 
ment. 50 

450. Publishing fraudulent prospectus.® 0 

451. Unlawfully practicing as certified accountant®! 

452. Using fraudulent tickets at Chautauqua Assembly.® 2 

453. Receiving money when bank insolvent.®® 

454. Unlawfully issuing certificate of deposit.® 4 

455. Fictitiously borrowing etc., money.® 5 

456. Failing to charge certified check.®® 

457. Certifying check when funds inadequate to pay.® 7 

458. Resorting to unlawful device.® 3 

459. Signing name to order without authority.® 0 

460. Declaring dividends greater than earned. 70 

461. False entry on book, etc. 74 

462. Aiding officer to violate any of preceding statutes. 72 

463. Drinking intoxicants aboard train. 73 

464. Prohibiting sale of intoxicants on premises where 
entertainment is given. 74 

465. Requiring police to enforce above statute. 75 

466. Shipping, transporting, etc., intoxicating liquors 
under fictitious name. 7 ® 

467. Physicians making unlawful prescriptions. 77 

468. Saloonkeepers making false answer to assessor. 78 

469. Engaging in liquor business after conviction. 70 

470. Engaging in liquor business after abatement as a 
nuisance. 80 

471. Soliciting order for liquor in dry territory. 84 

472. Free lunch limited to crackers, cheese and 
pretzels. 82 

473. Sale of lunch not to include drink. 83 

474. Selling liquor 30 days after prohibited in county. 84 

475. Also, in municipality. 85 


"a § 13151. 

« 4 § 13183. 

73 § 13201. 

54 § 13152. 

«5 § 13184. 

7« § 13216. 

55 §§ 13153, 13154. 

« § 13185. 

77 g§ 13217. 13218. 

“ § 13163. 

« § 13186. 

78 q 13219. 

07 § 13171. 

§ 13187. 

7» §§ 13220, 13221. 

58 § 13172. 

«» $ 13188. 

80 § 13222. 

5 » § 13173. 

™ § 13189. 

8i § 13223. 

e <> § 13175. 

71 § 13190. 

82 § 13224-1. 

61 § 13176. 

22 § 13191. 

83 § 13224-2. 

02 § 13177. 

73 § 13196. 

84 §§ 1 . 3295 , 13226. 

63 § 13182. 

74 § 13200. 

85 § 13232. 



205e 


CONSTABLES, MARSHALS, ETC. 


476. Also, in residence district. 86 

477. Removal of intoxicating liquors from premises after 
prohibited within thirty days. 8 ? 

478. Druggist selling contrary to local option laws. 8S 

479. Fraudulent registration. 86 

480. Inducing fraudulent registration. 90 

481. Personating another in registration. 91 

482. Hindering another in registration. 92 

483. Procuring unlawful erasures in registration lists. 96 

484. Officer permitting false registration. 91 

485. Inducing false registration. 95 

486. Officer refusing registration. 96 

487. Inducing registrar to violate law. 91 

488. Acting as registrar, judge or clerk without certifi¬ 
cate of appointment. 98 

489. Perjury before registrar. 99 

490. Money given by corporation for political pur¬ 
poses; 99 * officer aiding or advising. 1 

491. Voting at primary after making a change of party. 2 

492. Voting at other than proper voting place. 6 

493. Voting at primary more than once. 1 

494. Voting at primary when not a resident. 5 

495. Voting at primary under a false name. 6 

496. Impersonating another; 1 falsely signing certain 
papers. 8 

497. Voting with wrong political party. 9 

498. Official refusing to perform duty. 10 

499. Refusing to testify as to primary election. 11 

500. Delegate or committeeman giving proxy at primary 
forbidden. 12 

501. Acting or voting in place of delegate or committee¬ 
man. 16 

502. Making false statements about bank. 11 

503. Violating laws regulating trading stamps. 15 

504. Improper use of stenographer’s notes or transcripts 
thereof. 10 

505. Killing skunks out of season. 11 

506. Unlawful reinsurance by life company. 18 

507. False statements by insurance companies and 
officers. 19 

508. Divulging telephonic communications. 20 


80 8§ 13234, 13235. 

98 § 13307. 

13 § 13338. 

87 8§ 13237, 13238. 

99 § 13311. 

11 § 13339. 

88 8§ 13239, 13240. 

99 * § 13320. 

12 § 13358. 

89 § 13297. 

1 § 13321. 

13 § 13359. 

§ 13298. 

2 § 13327. 

14 § 13383-1. 

91 § 13299. 

3 § 13328. 

16 § 13399. 

92 § 13300. 

4 § 13330. 

16 § 13410. 

93 § 13301. 

5 § 13331. 

17 § 13413. 

04 § 13302. 

6 § 13332. 

18 § 13416. 

95 § 13303. 

7 § 13333. 

19 § 13418. 

09 §§ 13304, 13305. 

8 § 13334. 

20 § 13419. 

91 § 13306. 

9 § 13335. 



CRIMES AND OFFENSES, ETC. 


205/ 


509. Whoever refuses to allow agricultural commis¬ 
sioner, agents or inspector to enter creamery, car, drug¬ 
store, etc. 21 

510. Failing to comply with rules of agricultural com¬ 
mission. 22 

511. Having diseased animal and failing to give the 
notice required by law.23 

512. Disposing of diseased animal. 2 * 

513. Disposing of diseased bees. 25 

514. Articles to be sold by weight or count, unless by 
written agreement. 26 

515. Officer, etc., certifying false transcript or state¬ 
ment as to public bonds. 27 

516. Violating act in regard to organizing or promoting 
any insurance company, or its stock, etc. 28 

517. Fraudulently obtaining certificate of title, etc. 29 

518. Certifying check without deposit in bank. 30 

519. Using other than stencil brand o.n cheese. 31 

520. Failure to support child. 32 

521. Sale of cocaine, opium, etc., in violation of law. 33 

522. Selling fertilizer in violation of law. 3 * 

523. Violation of law as to sales by weight or count. 35 

524. Common carrier violating act relating to crew on 
switch engine. 36 

525. Carrying concealed weapons in violation of law. 37 

526. Conspiracy against trade. 38 

527. Deduction of insurance premium for state by 
employer. 36 

528. Abuse or aiding and abetting delinquency of 
minor. 40 

529. Importing diseased cattle into state. 41 

530. Divulging information obtained as employe of 
state liability board of awards. 42 

531. Violating provisions of road dragging act. 43 

532. Violating eight hour per day law for public work. 44 

533. Interfering with elector. 45 

534. Employer failing to furnish information to state 
liability board of awards. 46 

535. Employer or employe violating or opposing method 
devised to regulate lobbying. 47 

536. Employer misrepresenting amount of pay roll. 48 

537. Employer refusing to report injuries to employes. 49 


21 103 O. L. 329. 

22 103 O. L. 313. 

2 3 103 O. L. 313. 

24 103 O. L. 313. 

25 103 O. L. 323. 
*» 103 O. L. 136. 

27 103 O. L. 179. 

28 103 O. L. 753. 

29 103 O. L. 959. 

30 103 O. L. 383. 


31 103 O. L. 330. 

32 103 O. L. 873. 
as 103 O. L. 505. 

34 103 O. L. 322, 504. 
as 103 O. L. 136. 

3 « 103 O. L. 193. 

37 103 O. L. 553. 

3« 103 O. L. 254. 

3» 103 O. L. 89. 

<o 103 O. L. 873. 


« 103 O. L. 184. 
42 103 O. L. 74. 
« 103 O. L. 403. 
44 1 03 O. L. 854. 
46 103 O. L. 94. 
46 1 03 O. L. 72. 
«7 103 O. L. 5. 

48 103 O. L. 90. 

49 103 O. L. 90. 



20 og 


CONSTABLES, MARSHALS, ETC. 


o38. Employer refusing to submit books to inspection. 60 

530. Employer violating laws relating to health and 

safety. 51 

540. Making false statement as to child under labor act. 52 

541. Violation of law as to false weights and measures. 53 

542. Exhibiting motion picture proscribed by censor. 5 * 

543. Sale of farm products by other than standard 
bushel. 55 

544. Hindering authorized person from taking samples 
of feed stuffs. 56 

545. Selling feed stuffs in violation of law. 57 

546. Employing females in violation of law. 58 

547. Violating law relating to employment of females. 59 

.548. Violating law protecting fish. 60 

549. Forging signature or handwriting to instruments. 61 

550. Fraudulent advertising; 62 violating law protecting 
game. 63 

551. Influencing girl to leave industrial home. 6 * 

552. Violating law requiring hunter’s license. 65 

553. Hunting and trapping in violation of law. 66 

554. Violating laws of initiative and referendum peti¬ 
tions. 67 

555. Selling insecticides and fungicides in violation of 
law. 68 

556:. Operating interurban cars without closets and 
water. 69 

557. Larceny of books, papers and documents. 70 

558. Practice of medicine and surgery without certifi¬ 
cate. 71 

559. Practice of midwifery without a certificate. 72 

560. Use of mine oils in violation of law. 73 

561. Enticing minors to play at games. 74 

562. Sale of toy pistols and firearms to minors. 75 

563. Operating motor vehicles contrary to law. 76 

564. Operating motor vehicles without a license. 77 

565. Operating motor vehicles without the owner’s con¬ 
sent. 78 

566. Operating motor in meeting on roads in violation 
of law. 79 

567. Violating act regulating publications by news¬ 
papers. 80 


BO 

103 

O. 

L. 

89, 90. 

61 

103 

O. 

51 

103 

O. 

L. 

109. 

62 

103 

O. 

62 

103 

O. 

L. 

913. 

C3 

103 

O. 

63 

103 

O. 

L. 

136, 332. 

64 

103 

O. 

64 

103 

O. 

L. 

400. 

65 

103 

0 . 

65 

103 

O. 

L. 

559. 

66 

103 

O. 

66 

103 

O. 

L. 

518. 

67 

103 

O. 

67 

103 

O. 

L. 

319, 518. 

68 

103 

O. 

68 

103 

O. 

Li. 

910. 

69 

103 

O, 

69 

103 

O. 

L. 

655. 

70 

103 

O. 

60 

103 

O. 

L. 

335. 





L. 959. 

71 103 O. L. 440. 

L. 43. 

72 103 O. L. 440. 

L. 341. 

73 103 O. L. 27. 

L. 884. 

74 1 03 O. L. 906. 

L. 718. 

75 103 O. L. 906. 

L. 337. 

70 103 O. L. 133, 161 

L. 653. 

77 103 O. L. 763. 

L. 165. 

78 103 O. L. 524-526. 

, L. 64. 

79 103 O. L. 556. 

L. 959. 

103 O. L. 856. 


CRIMES AND OFFENSES, ETC. 


205ft 


568. Failure to destroy nursery stock in violation of 
order. 81 

569. Violation of act for preventing occupational 
diseases. 82 

570. Perjury in registration of land titles. 83 

571. Hindering officer in violation of duty. 84 

572. Practice of osteopathy i*n violation of law. 86 

573. Trespassing on state pleasure resorts. 86 

574. Violating required inspection of queen bee apiary. 87 

575. Violation by railroads of law relating to safety 
appliances. 88 

576. Violation of law regulating sale of securities. 86 

577. Soliciting money from prisoners. 60 

578. Violation of law as to spraying orchards. 61 

579. Violation of law requiring examination of steam 
boilers. 62 

580. Operating switching engine with less than full 


crew. 63 


81 103 O. L. 317. 

82 103 O. L. 823 

88 103 O. L. 960. 
84 103 O. L. 913. 

89 103 O. L. 441. 
*• 103 O. L. 337. 
87 103 O. L. 323. 


88 103 O. L. 117, 193. 


89 103 O. L. 753. 
98 103 O. L. 93. 

81 103 O. L. 495. 

82 103 O. L. 631. 
88 103 O. L. 192. 


206 


CONSTABLES, MARSHALS, ETC. 


Felonies. 


1. Any person offending in any way set forth below is 
guilty of a felony. 

2. Any trustee, superintendent, or other officer, who shall 
cheat or defraud, or attempt to cheat or defraud, the Ohio 
Soldiers’ and Sailors’ Orphans’ Home, or any trustee, super¬ 
intendent, or other officer, who is directly or indirectly in¬ 
terested in any contract of such institution. 1 

3. Any officer or person violating provisions of § 2707 re¬ 
lating to examination of county treasury. 2 

4. Any person who induces false registration, or who in¬ 
duces officer to refuse registration, or whoever falsely regis¬ 
ters, or falsely personates another, or hinders or attempts 
to hinder another from registering, or procures unlawful 
erasure in ballot lists. 3 

5. Any judge of election who permits any ballot to be in 
the ballot-box at the opening of the polls, or to be improp¬ 
erly placed there at any time, or whoever is guilty of per¬ 
jury upon examination by registrar. 3 

C. Counterfeiting registration certificate.4 

6a. Unlawfully cutting or tapping any telegraph or tele¬ 
phone wire, etc., or using, intercepting or delaying tele¬ 
graph messages, or unlawfully obtaining, using, or delaying 
telegraph or telephone messages, or destroying or interfer¬ 
ing with property of electric street railway or electric 
light plant. 5 

9. Any person who forges or counterfeits any receipt of 
inspector of tobacco, or alters such receipt, or knowingly 
offers in sale or exchange any counterfeit receipt. 6 

10. Whoever purposely and either of deliberate and pre¬ 
meditated malice, or by means of poison, or in perpetrating 
or attempting to perpetrate any rape, arson, robbery, or 
burglary, kills another.? 

11. Causing death by maliciously placing obstruction 
upon railroad, or by displacing or injuring any thing per¬ 
taining thereto. 6 

12. Whoever purposely and maliciously kills another. 0 

13. Whoever unlawfully kills another, except as provided 
for in the last two sections. 10 

14. Whoever administers poison to a person with intent 


i8 12884. 

2 § 2708. 

3 § 13286. 

4 § 13310. 
e § 12507. 


« § 13092. 

7 § 12400 (93 v. 223). 

8 § 12401. 

8 5 12403. 
io § 12404. 


CRIMES AND OFFENSES, ETC. 


207 


to kill or injure such person, or whoever poisons any food, 
drink, or medicine, well, spring, cistern, or reservoir, with 
like intent. 1 

15. Whoever, with intent to procure the miscarriage of 
any woman, prescribes or administers to her any medicine, 
drug or substance, or uses any instrument or means what¬ 
ever, unless such miscarriage is necessary to preserve her 
life, or is advised by two physicians to be necessary for that 
purpose, shall, if the woman either miscarries or dies in 
consequence thereof, be deemed guilty of abortion. 2 

16. Whoever has carnal knowledge of a female person 
forcibly and against her will, or, being eighteen years of age, 
carnally knows and abuses a female person under sixteen 
years of age with her consent. 3 

17. Whoever commits the crime of rape. 4 

18. Whoever, by force and violence, or by putting in 
fear, steals and takes from the person of another any thing 
of value. 5 

19. Whoever, with malicious intent to maim or disfigure, 
cuts, bites or slits the nose, ear or lip, cuts out or disables 
the tongue, puts out or destroys an eye, cuts off or disables 
a limb, or any member of another person. 6 

20. Whoever maliciously shoots, stabs, cuts or shoots at 
another person, with intent to kill, wound or maim such 
person. 7 

21. Whoever assaults another with intent to kill, or to 
commit rape or robbery upon the person so assaulted. 8 

22. AVhoever forcibly or fraudulently carries off or decoys 
out of this state any person, or arrests or imprisons any 
person with the intention of having such person carried 
out of the state. 9 

23. Whoever leads, takes, carries, decoys, or entices away 
a child under the age of twelve years, with intent unlaw¬ 
fully to detain or conceal such child. 10 

24. Abducting girl from Girls’ Industrial Home or other 
benevolent, penal or reformatory institution.ii 

25. Whoever, either verbally or by any letter or writing, 
or written or printed communication, sent or delivered by 
him, demands of any person, with menaces, any chattel, 
money or valuable security, or knowingly sends or delivers 
any letter or writing, or any written or printed communi¬ 
cation, with or without a name, or with any letter, mark or 
designation, accusing or threatening to accuse any person 
of a crime punishable by law, or of any immoral conduct 
which, if true, would tend to degrade and disgrace such 
person, or to expose or publish any of his infirmities or 

1 8 12405. 5 § 12432. » § 12424. 

2 § 12412. 6 § 12410. 10 § 12425. 

2 § 12414. 7 § 12420. u § 14426. 

* § 12414. 8 § 12421. 


208 


CONSTABLES, MARSHALS, ETC. 


failings, or in any way subject him to the ridicule or con¬ 
tempt of society, or to do an injury to the person or prop¬ 
erty of any person, with intent to extort or gain from such 
person any chattel, money or valuable security, or any pe¬ 
cuniary advantage whatsoever, or with intent to compel the 
person threatened to do any act against his will, shall be 
deemed guilty of blackmail. 1 

26. Whoever maliciously burns or attempts to burn any 
dwelling-house, or any other building, coach or car, water¬ 
craft or bridge, the property of another person, of the value 
of fifty dollars. 2 

27. Burning property with intent to prejudice the in¬ 
surer. 3 

28. Whoever, in the night season, maliciously and forci¬ 
bly breaks and enters any dwelling-house, kitchen, smoke¬ 
house, shop, office, store-house, warehouse, malt-house, 
still-house, mill, pottery, factory, water-craft, school-house, 
church or meeting-house, barn or stable, or railroad car, car 
factory or station-house, with intent to commit a felony, or 
with intent to steal property of any value; or whoever 
shall have in his possession any implements used by bur¬ 
glars for house-breaking, with the intention of using such 
tools burglariously. 4 

29. Whoever maliciously, either by night or day, enters a 
house and attempts to commit a felony. 5 

30. Whoever, being charged with the collection, receipt, 
safe-keeping, or disbursement of the public money, or be¬ 
quest, belonging to the state, or to any county, township, 
municipal corporation, board of education, cemetery asso¬ 
ciation or company in this state, converts to his own use, or 
to the use of any other person, body corporate, association 
or party whatever, or uses by way of investment in any 
kind of security, stock, loan, property, land or merchan¬ 
dise, or in any other manner or form whatever, or loans 
with or without interest to any company, corporation, as¬ 
sociation or individual, any portion of the public money, 
or any other funds, property, bonds, securities, assets or 
effects of any kind, received, controlled, or held by him in 
safe-keeping or in trust for a specific purpose, transfer or 
disbursement, or in any other way or manner, or for any 
other purpose, is guilty of embezzlement. 6 

31. An officer, agent, clerk, servant cr employe of any 
person or corporation (except apprentices and persons un¬ 
der the age of eighteen years), who embezzles, or converts 
to his own use, or fraudulently takes or makes away with, 
or secretes with intent to embezzle or convert to his own 

12437. 

12441. 

12873 (am. 91 v. 338). 


1 § 13384. * 8 

2 § 12433. R § 

2 § 12434. e § 


CRIMES AND OFFENSES, ETC. 


209 


nse, any thing of value which may come into his possession 
by virtue of his employment. 1 

32. Embezzlement by carrier, warehouseman, commission 
merchant, or manufacturer, or his clerk, agent, or employe, 
or by a consignor or his agent.' 2 

33. Whoever steals any horse, mare, gelding, foal or filly, 
ass or mule, of any value, or receives, buys or conceals any 
horse, mare, gelding, foal or filly, ass or mule, that shall 
have been stolen, knowing the same to have been stolen, 
with intent to defraud, or knowingly conceals any horse 
thief. 3 

34. Whoever buys, receives or conceals any thing of 
value which has been stolen, taken by robbers, embezzled 
or obtained by false pretense, knowing the same to have 
been stolen, taken by robbers, embezzled or obtained by 
false pretense. 4 

35. Whoever steals, destroys, or secretes a will. 5 

36. Any person unlawfully destroying or meddling with 
railway property. 6 

37. Any person willfully throwing stones or other hard 
substance, or shooting, at trains or vessels. 7 

38. Whoever maliciously destroys or injures property not 
his own. 8 

39. Whoever maliciously destroys trees and crops not his 
own. 9 

40. Whoever purposely and maliciously puts any soap, 
alkali, etc., into boilers, wells, etc., with intent to injure or 
damage any person. 10 

41. Whoever puts up false lights, or willfully does any 
act tending to the immediate loss of a vessel. 11 

42. Whoever begins or sets on foot, or provides or pre¬ 
pares the means for any unauthorized military expedition 
against the territory or the people of any state of the 
United States. 12 See also Chapter 29. 

43. Dueling, or aiding or abetting a duel. 13 See also Chap¬ 
ter 29. 

44. Prize-fighting. 14 See also Chapter 29. 

45. Any three or more persons who unite and commit 
any misdemeanor, while disguised. 15 See also Chapter 29. 

46. Whoever, either verbally or in writing, on oath law¬ 
fully administered, willfully and corruptly states a false¬ 
hood as to any material matter in a proceeding before any 
court, tribunal, or officer created by law, or in any matter 
in relation to which an oath is authorized by law. 16 

*§ 1287G. Embezzlement defined, State v. Baxter, 14 N. P. (N.S.) 
228' 

2 s 12470. 7 § 12497. 12 § 12394. 

3 $ 12448. 8 § 12477. 13 § 12799. 

4 8 12450. 9 § 12478. 14 § 12800. 

» 8 12451. 10 § 12602. 35 § 12810. 

« $ 12560. n § 12638. 19 § 12842. 


210 


CONSTABLES, MARSHALS, ETC. 


47. Giving bribes to officers or public agents, to influence 
them in their official duty. 1 

48. Whoever aids, induces, or attempts to induce any 
convict to escape. 2 

49. Any officer or agent of state, who interests himself in 
any contract for the use of the state. 3 

50. Any officer, or superintendent, or overseer, who 
knowingly makes a fraudulent plan, estimate, etc., or per¬ 
mits any work to be done fraudulently. 4 

51. Whoever harbors or conceals any thief or robber, 
knowing him to be such. 5 

52. Whoever, except a female or a blind person, goes 
about begging, shall be deemed a tramp. Any tramp who 
enters dwelling, yard, etc., without the permission or 
against the will of the owner, or who carries fire-arms, or 
who does or threatens injury to the person or property of 
another. 6 

53. Whoever, having a husband or wife, marries an¬ 
other. 7 

54. Persons nearer of kin by consanguinity or affinity 
than cousins, having knowledge of their relationship, who 
commit adultery or fornication together. 8 

55. Whoever has carnal knowledge of insane woman. 9 

56. Whoever seduces under promise of marriage. 10 

57. Whoever induces any female under eighteen years of 
age to have illicit intercourse, or whoever permits it on 
premises owned or controlled by him. 11 

58. Whoever gives wine, etc., to female, with intent to 
induce illicit intercourse. 12 

59. W'hoever, being over twenty-one years of age, has in¬ 
tercourse with his female pupil. 13 

60. Whoever sells, gives away, etc., obscene literature, or 
medicine for procuring abortion, or any article for immoral 
use. 14 

61. Whoever commits the offense of sodomy. 15 

62. Whoever, without lawful authority, takes any dead 
body from its sepulture, or receives or delivers the same 
to another. 16 

63. Whoever offers bribes for votes at primary elections. 17 

64. Whoever bribes delegates or electors. 18 


1 § 12823. 

2 § 12833. 

3 § 12910 (94 v. 391). 

4 § 12912. 

6 § 12841. 

0 § 13408. 

7 § 13022. 

8 § 13023. 


“ § 13026. 

«• § 13027 (92 v. 207). 

12 § 13028. 

13 § 13030. 

14 § 13035. 

16 § 13043. 

76 § 13391. 


CRIMES AND OFFENSES, ETC. 


211 


65. Whoever, being a resident of this state, votes, not be¬ 
ing a resident of the county thirty days. 1 

66. Whoever votes at any election in this state, being a 
resident of another state. 2 

67. Whoever votes more than once at the same election. 5 


68. Whoever procures, assists, etc., another to go or come 
into a county, of which he is not a resident, to vote. 4 


69. Whoever deceives an elector who can not read, with 
intent to induce him to vote contrary to his inclination ; or 
whoever fraudulently changes the ballot of any elector. 5 

70. Whoever votes fraudulently. 6 

71. Any judge who knowingly counts fraudulent votes. 7 

72. Whoever unlawfully obtains, or attempts to obtain, 
possession of ballot-box or ballots. 8 

73. Whoever destroys, or attempts to destroy, ballot-box; 
or w’hoever destroys, changes, or tampers w r ith any ballot. 9 

74. Whoever writes fraudulently on poll-books or tally- 
sheets. 10 

7 b. Whoever has in his possession any falsely made, 
forged, or altered poll-books or tally-sheets, with intent to 
hinder or prevent a fair election. 11 

76. Whoever, being a candidate for office, bribes any 
elector. 12 

78. Putting adulterated liquors in branded packages. 14 

79. Whoever makes out and presents false claims of in¬ 
debtedness of any kind to public officers. 15 

80. Selling or conveying land without title. 10 

81. Manufacturing or selling poisoned liquors. 11 


82. Fraudulently obtaining money from insurance com¬ 
panies. 18 

83. Whoever executes and delivers any false or fictitious 
bill of lading, with intent to defraud. 10 

84. Whoever executes and delivers to any person any 
false or fictitious warehouse receipts, with intent to de¬ 
fraud, or signs or indorses same. 20 


i§ 13253. 

2 § 13252. 
s § 13250. 

^§ 13260. 
s § 13266. 
o§ 13264. 
t§ 13284. 

' § 13352. 

• § 13351. 
§ 13350. 


u § 13353. 
12 § 13316. 
1 4 § 13211. 
is § 13105. 

10 § 13125. 

11 § 12675. 
is § 13133. 
io § 13115. 
20 § 13117. 


212 


CONSTABLES, MARSHALS, ETC. 


85. Any person in whose name property has been ship¬ 
ped to a consignee, who, having received an advancement 
on same from consignee, disposes of any such property in 
any other way than as he agreed. 1 

86. Whoever sends letters, etc., to fraudulently obtain 
money. 2 

87. Whoever commits any fraud in sale of grain, seed, 
etc., or any negotiation of any notes, etc., obtained by such 
fraud. 3 

88. Whoever forges or alters note, bond, lease, will, bank 
bill or note, etc., or utters or publishes the same, with in¬ 
tent to defraud.* 

89. Whoever fraudulently uses the fac-simile signature of 
governor. 5 

90. Whoever alters, forges, or counterfeits judicial rec¬ 
ord. 6 

91. Whoever forges or counterfeits brand of inspector ap¬ 
pointed by law, or uses same. 7 

92. Whoever counterfeits coins, or utters or puts off such 
coins, or makes or keeps instruments to counterfeit coins. 8 

93. Whoever gilds current coin, or puts into circulation 
any false or gilded money. 9 

94. Whoever falsely makes or counterfeits issues of the 
United States, or passes or has in possession and conceals 
same, with intent to pass or to defraud. 10 

95. Whoever prints from genuine plates, except for the 
use of the United States, or whoever engraves, sells, brings 
into the state, or has in his possession counterfeit plate, or 
whoever makes, sells, brings into the state prints or impres¬ 
sions of issues of the United States, except for the use of 
the United States. 11 

96. Whoever engraves or keeps plate for counterfeiting, 
or whoever alters or defaces any bank bill, with fraudulent 
intent. 12 

97. Whoever has in possession or disposes of counterfeit 
coin, or counterfeit or fictitious bank notes. 13 

98. Whoever attempts to pass counterfeit coin or bank 
notes. 14 

99. Whoever unlawfully uses or has possession of dyna¬ 
mite. 15 

100. Any person who willfully injures or destroys any 
lock, bank, waste weir, dam. aqueduct, or culvert belong¬ 
ing to any state canal. 16 




5 

0 


§ 13143. 7 § 13090. is 8 

§ 13144 (93 v. 168). 8 § 13094. i* I 

§ 13129. 9 § 13095. ib 8 

§ 13083. 10 § 13096. ie 8 

§ 13084. u § 13098. 

§ 13085. 12 § 13099. 


13100. 

13101. 

12533. 

14024. 


CRIMES AND OFFENSES, ETC. 


213 


Kyi. Whoever, directly or indirectly, by himself or 
through any other person, either bribes or attempts to 
bribe any voter, or receives a bribed 

103. Any officer, agent, etc., of any loan or building asso¬ 
ciation, who embezzles or misapplies any of the moneys of 
such association; or who unlawfully raises or receives 
money for and in the name of such association; or who un¬ 
lawfully signs the .name of any person to any order, war¬ 
rant, etc., without proper written authority; or any mem¬ 
ber of the board of directors who shall vote to declare a 
false dividend for the purpose of defrauding; or who makes 
or certifies to any false entry in book, report, etc., of or to 
such association, for the purpose of deceiving or defraud¬ 
ing; and every person who with fraudulent intent aids or 
abets any officer or other person in any violation of this 
sfiction.3 

104. Any person who knowingly enters any horse, mare, 
gelding, colt, or filly under an assumed name, out of its 
proper class, for competition, where any prize is competed 
for by contests of speed. 4 

106. Any person entering horse, mare, etc., for prize 
under assumed name, or out of its proper class. 6 

107. Any person who misrepresents or disguises horse, 
mare, etc., or enters same out of its proper class. 6 

1 § 13312 (89 v. 451). 

3 § 12472. 

4 § 5864 (88 v. 547). 

9 § 5865 (90 v. 8). 


214 


CONSTABLES, MARSHALS, ETC. 


Misdemeanors or Felonies. 


I. The following offenses are misdemeanors or felonies, 
and any person offending in any way set forth below is 
guilty of a misdemeanor or of a felony, according to the 
degree of the offense. 1 

9. Any person who steals stranded or shipwrecked prop¬ 
erty. 2 

3. Fmbezzlement of negotiable instruments before de¬ 
livery. 3 

4. Fmbezzlement of any thing carried for hire, by the 
carrier. 4 5 

5. Fmbezzlement by an inn-keeper of articles intrusted 
to him for safe keeping. 0 

6. Fmbezzlement by carrier, warehouseman, commission 
merchant, etc. 6 7 

7. Embezzlement by municipal and school officers.? 

8. Whoever, being intrusted with the care, custody, or 
control of any property of the state, sells the same with 
i,ntent to defraud. 8 

9. Whoever maliciously kills or injures any domestic 
animal, the property of another. 6 

10. Whoever steals any thing of value is guilty of lar¬ 
ceny; and if the value of the thing stolen is thirty-five 
dollars or more, it is grand larceny, which is a felony; or 
if the value is less than that sum, it is petit larceny, which 
is a misdemeanor. 10 

II. Trespassing, unlawfully cutting timber, etc., on lands 
of another, or of the State of Ohio. 11 

12. Turning personal property to the value of thirty- 
five dollars or more is a felony; of less value than thirty- 
five dollars, is a misdemeanor. 12 

13. Any county auditor who makes fraudulent entry of 
tax omissions. 13 

14. Any member of a board of education organized un¬ 
der tlie laws of this state, who receives compensation for 
services, except as clerk or treasurer of said board. 14 

10. Any engineer who violates the duties prescribed by 
law, at railroad crossings, is guilty of a misdemeanor. 
Any person who permits a car to remain on any street. 


1 § See Chap. 22, par. 33. 

2 § 0439. 

s § 12408. 

4 § 12409. 

5 § 12409. 

6 § 12470. 

7 § 12878. 


8 § 12S80. 

9 § 13301. 

§ 12447. 

11 § 12455. 

1 2 § 12435. 

13 § 12919. 

14 § 12883. 


CRIMES AND OFFENSES, ETC. 


215 


road, or highway, is guilty of a misdemeanor. When 
death results from such violation, the offense is a felony.* 
16. Whoever, by any false pretense, with intent to de¬ 
fraud, obtains any thing of value, or the signature of 
another to any note, bond, etc., or whoever disposes of any 
such note, bond, etc. 2 


* 5§ 12459, 12550. 


2 § 13104. 


216 


CONSTABLES, MARSHALS, ETC. 


CHAPTER 33. 

MISCONDUCT OF OFFICERS, AND OF OTHERS TO¬ 
WARD THEM. 


1. Resisting or abusing ministerial officers. Whoever abuses 
Or knowingly and willfully resists or obstructs any consta¬ 
ble, or other officer, in the execution of his office, is liable 
to be fined not more than five hundred dollars, or impris¬ 
oned not more than thirty days, or both. 1 * 


2. Intimidating officer, witness , or juror, or obstructing due ad¬ 
ministration of justice. Whoever, corruptly, or by threats or 
force, endeavors to influence, intimidate, or impede any 
officer, juror, or witness in any court in the discharge of his 
duty, or by threats or force obstructs or impedes, or en¬ 
deavors to obstruct or impede, the due administration of 
justice therein, may be fined not more than one hundred 
dollars, or imprisoned not more than twenty days, or both. 3 

3. Extortion by officer. An officer under the constitution 
or laws of this state who knowingly asks, demands, or re¬ 
ceives any fee or reward, other than is allowed by law, to 
execute or do his official duty, or knowingly charges, asks, 
demands or receives any more or greater fees or costs than 
are allowed by law for such official duty, or engages in, or 
suffers others in his employ to engage in, any business 
which by reason of his office he is prohibited from doing, 
is liable to be fined not more than two hundred dollars, or 
imprisoned not more than twenty days, or both. An officer 
convicted under this paragraph forfeits his office, and it 
must be declared by the court to be vacant; and such con¬ 
vict will, for seven years thereafter, be incapable of holding 
any office of honor, profit, or trust in this state. 4 

4. Injuring or defrauding under color of office. A constable 
or other ministerial officer, and every deputy or subordinate 
of any such officer, who, by color of or in the execution 
of his office, willfully or corruptly injures, defrauds, or op¬ 
presses any person, or attempts to defraud, injure, or op- 


i § 12858. 

3 § 12806. No prosecution can 

after one year after the offense is 

4 § 1201(5. 


be commenced under this section 
committed. Ib. 


MISCONDUCT OF OFFICERS, ETC. 


217 


press any person, is liable to be fined not more than two 
hundred dollars. 1 

5. Usurpation of office and oppression. Whoever takes upon 
himself to exercise, or officiate in, any office or place of au¬ 
thority in this state, without being lawfully authorized, and 
whoever, by color of his office, willfully and corruptly op¬ 
presses any person, under pretense of acting in his official 
capacity, is liable to be fined not more than three hundred 
dollars, or imprisoned not more than twenty days, or 
both. 2 

6. Neglecting, delaying , or refusing to perform their duty in 
criminal cases. v A constable or other ministerial officer who 
willfully refuses or neglects to perform any duty he is re¬ 
quired by law to perform, in any criminal case or proceed¬ 
ing, and every officer whose duty it is to execute the same 
who delays to serve any warrant* legally issued in any crim¬ 
inal case, which is delivered to him to execute, when in his 
power to serve the same, either alone or by calling assist¬ 
ance, if the offense charged be a felony, is liable to be fined 
not more than five hundred dollars, or imprisoned not more 
than thirty days, or both, or, if the offense be a misde¬ 
meanor, be fined not more than one hundred dollars, or im¬ 
prisoned not more than twenty days, or both. An officer 
convicted under this section may be removed from office by 
order of the court. 3 

7. Escape or rescue of prisoner. Whoever, having lawfully 
the custody of a person charged with or convicted of an of¬ 
fense, voluntarily suffers such prisoner to escape and go at 
large, and whoever rescues such prisoner by force from the 
custody of such person, or from a jail, or any place of con¬ 
finement, may be fined not more than five hundred nor less 
than fifty dollars, or imprisoned not more than three 
months, or both. 4 

8. Unclean jail; too lenient treatment of prisoner. A jailer 
or other person having the care and custody of any jail, 
who suffers it to become foul or unclean, so that the health 
of any prisoner may be endangered, or suffers any prisoner, 
sentenced to imprisonment for any criminal offense, to be 
dealt with in a manner less strictly than intended by the 
sentence, is liable to be fined not more than one hundred 
dollars. 5 

9. When officer liable for damages for neglect. Generally, 
when the performance of a public duty is imposed by stat¬ 
ute upon a public officer, such as a constable, sheriff, etc., 
and he willfully neglects to perform that duty, by which 
neglect another suffers some special damage, the person 

i The sheriff, coroner, jailer, clerk, the county recorder, auditor, 
treasurer, and assessor are also included in this. See § 12915. 

= § 12925. 3 § 12850. 4 § 12832. 8 § 12849. 


218 


CONSTABLES, MARSHALS, ETC. 


thus guilty is liable to an action for such damages, in favor 
of the party injured, unless the statute creating the duty 
provides a peculiar and exclusive remedy; and in general 
such remedy is not taken away by the mere annexation of 
a penalty for the public wrong, recoverable by indictment 
or at the suit of a common informer , 1 

1 Swan’s Treatise, 355, citing 14 O. S. 64; 19 lb. 21: 7 lb. 109. But where 
the duty is imposed by statute upon minor political organizations or 
quasi corporations, without their conoent, for purposes of public 
policy and not for their own benefit, but that of the public at large, 
such as county commissioners, trustees of the township, city council, 
and the like, such omission of public duty, in general, lays no found¬ 
ation for the recovery of private damages, unless such recovery is ex¬ 
pressly authorized by statute. Ib. 


CRUELTY TO CHILDREN, ETC. 


219 


CHAPTER 34. 

CRUELTY TO CHILDREN AND ANIMALS, ADUL¬ 
TERATIONS OF FOODS, MEDICINES, ETC.; POWERS 
AND DUTIES OF CONSTABLES, MARSHALS, AND 
OTHER OFFICERS AS TO. 


1. Societies for prevention of cruelty ; agents of, etc. The Ohio 
Humane Society is regularly incorporated, and has for its 
object the inculcation of humane principles, and to secure 
the enforcement of laws for the prevention of cruelty, 
especially to children and animals. 1 Duly incorporated 
societies for the prevention of cruelty to animals exist in 
some counties, which may become branches of said Hu¬ 
mane Society -, 1 and each of the societies above designated 
may appoint agents, whose duties, in part, are to enforce 
the laws relating to such cruelties. 2 

2. Such agents, whose appointments as such have been 
approved by the mayor of the municipal corporation or by 
the probate judge of the county within which they may 
act as stated in this paragraph, may arrest any person found 
violating any law for the protection of persons or animals, 
or the prevention of cruelty thereto; and upon making 
such arrest must forthwith convey the person arrested be¬ 
fore some court or magistrate having jurisdiction of the 
offense, and there make complaint against him.* 

3. In some cases, ministerial officers of magistrates’ 
courts are appointed such agents. 

4. Interpretation of certain words. In this chapter, and in 
every law of the state relating to or in any manner affect¬ 
ing animals, the word “ animal ” must be held to include 
every living dumb creature; the words “torture,” “tor¬ 
ment,” and “cruelty,” must be held to include every act, 
omission, or neglect whereby unnecessary or unjustifiable 
pain or suffering is caused, permitted, or allowed to con¬ 
tinue, when there is a reasonable remedy or relief; and the 
words “ owner ’ and “ person ” must be held to include cor¬ 
porations ; and the knowledge and acts of agents and em¬ 
ployes of corporations, in regard to animals transported, 

1 § 10062. 2 See more fully, §§ 10062, 10067. 

3 §§ 10065-10072. 


220 


CONSTABLES, MARSHALS, ETC. 


owned, employed by, or in the custody of a corporation, 
must be held to be the act of such corporation. 1 

5. Magistrates may authorize certain inspections. When com¬ 
plaint is made, on oath or affirmation, to a magistrate or 
court authorized to issue warrants in criminal cases, that 
the complainant believes that any of the provisions of law 
relating to or affecting animals are being or are about to be 
violated in any particular building or place, such magistrate 
or court must issue and deliver immediately a warrant di¬ 
rected to any constable, police officer, or agent of such as¬ 
sociation, or sheriff, authorizing him to enter and search 
such building or place, and to arrest any person there pres¬ 
ent violating or attempting to violate, any such law, and to 
bring such person before some court or magistrate of com¬ 
petent jurisdiction within the city, village, or county within 
which such offense has been committed, to be dealt with 
according to law; and such attempt must be held to be a 
violation of such law, and will subject the person charged 
therewith, if found guilty, to the penalties provided 
therein.' 2 

6. Police powers of officers and agents. An officer, agent, or 

member of any such association may interfere to prevent 
the perpetration of any act of cruelty to animals in his 
presence, and may use such force as may be necessary to 
prevent the same, and to that end may summon to his aid 
any bystanders. 3 *** 

7. Officers may require policemen to act. Any such associa¬ 
tion may require the constable of any township, the mar¬ 
shal or policemen of any city or village, the agent of any 
such association, or the sheriff of any county, when the 
laws for the prevention of cruelty to animals have been 
violated, to take possession of any animal cruelly treated, 
in their respective counties, cities, or villages, and deliver 
the same to the proper officers of such association ; and for 
such service, and for all services rendered in carrying out 
the provisions of this chapter, such officers, and the officers 
and agents of the association, must be allowed and paid 
such fees as they are allowed for like services in other cases, 
which must be charged as costs, and reimbursed to the as¬ 
sociation by the person convicted. 4 

8. Constable , etc., may care for animah unlawfully impounded. 
When an animal is impounded, yarded, or confined, and 
continues without necessary food, water, or proper atten¬ 
tion for more than fifteen successive hours, any constable 
or other person may, from time to time, and as often as it 
may be necessary, enter into and upon any place in which 
such animal is so impounded, yarded, or confined, and sup- 

1 § 10074. 2 § 13491. 

3 § 10073. See pars. 36, 37 of Chap. 3, as to such aid. 

4 § 10075. 


CRUELTY TO CHILDREN, ETC. 


221 


ply it with necessary food, water, and attention, so long as 
it remains there, or may, if necessary or convenient, remove 
such animal, and will not be liable to an action for such 
entry; and the reasonable cost of such food, water, and at¬ 
tention may be collected by him of the owner of such ani¬ 
mal, and the animal will not be exempt from levy and sale 
upon execution issued upon a judgment therefor. 1 

9. Jurisdiction of magistrates as to such cruelty , and as to cer¬ 
tain adulterations. Any justice of the peace, within his 
county and city, police judge or mayor of any city or village, 
within his city or village, has jurisdiction in case of viola¬ 
tion of the laws to prevent adulteration ol food and drink, 
the adulteration and deception in the sale of dairy products, 
and drugs,, and medicines, and any violation of the law for 
the prevention of cruelty to animals, or under section sixty- 
nine hundred and eighty-four of the Revised Statutes, or 
section sixty-nine hundred and eighty-four (a) thereof. If 
such prosecutions be before a justice of the peace, and a 
trial by jury be not waived, the said justice must issue a 
venire to any constable of the county, containing the 
names of sixteen electors of the county to serve as jurors 
to try such case, and make due return thereof, and to fill 
the panel with by-startlers when so ordered by the magis¬ 
trate. 2 

i§ 10079. 

2 § 13423. Special provisions are made as to costs. See also pages 
— and —. 

The sections mentioned in paragraph 9 above are as follows: 

Sec. 129GS. Whoever takes, ’receives, hires, employs, uses, exhibits, 
or in any manner, or under any pretense, sells, apprentices, gives 
away, lets out, or otherwise disposes of, to any person, any child 
under the age of fourteen years, for or in the vocation, occupation, 
service, or purpose of singing, playing on musical instruments, rope 
or wire walking, dancing, begging, or peddling, or as a gymnast, con¬ 
tortionist, rider, or acrobat, or tor or in any obscene, indecent, or im¬ 
moral purpose, exhibition, or practice, or for or iu any business, 
exhibition, or vocation injurious to the health or dangerous to the life 
or limbs of such child, or causes, or procures, or encourages any such 

child to engage therein, or causes or permits any such child to suffer, 

or inflicts upon it unjustifiable physical pain or mental suffering, or 
has any such child in custody for any of the purposes aforesaid, shall 

be fined not more than two hundred dollars, or imprisoned not more 

than six months, or both. 

Sec. 12428. Whoever tortures, torments, cruelly or unlawfully pun¬ 
ishes, or willfully, unlawfully, and negligently deprives of necessary 
food, clothing, or shelter, any person, shall be fined not more than 
two hundred dollars, nor less than ten dollars, or imprisoned for not 
more than six months, or both. 

Section 12969 provides that nothing contained in section 12428 
shall apply to or affect the taking part without remuneration of such 
child, with the consent of its parents or guardian, in a church, or 
any school or academy, or at a concert or entertainment given for 
charitable purposes, or by a church or any school, academy, char¬ 
itable, eleemosynary or religious institution. 


222 


CONSTABLES, MARSHALS* ETC, 


10. Search warrant, in certain cases, etc. When complaint 
is made, on oath or affirmation, to a magfstrate or court 
authorized to issue warrants in criminal cases, that the com¬ 
plainant believes that any of the provisions of law relating 
to or affecting animals are being or are about to be violated 
in any particular building or place, such magistrate or court 
must issue and deliver immediately a warrant directed to 
any sheriff, constable, police officer, or agent of such asso¬ 
ciation, authorizing him to enter and search such building 
or place, and to arrest any person there present violating or 
attempting to violate, any such law, and to bring such per¬ 
son before some court or magistrate of competent jurisdic¬ 
tion within the city, village, or county within which such 
offense has been committed, to be dealt with according to 
law; and such attempt must be held to be a violation of 
such law, and will subject the person charged therewith, if 
found guilty, to the penalties provided therein. 1 2 

11. For further provisions as to L search—wan ants, see 
Chapter 30. 

12. Duties of constable, marshal, police officer, sheriff, etc., as to 
cock-fighting. When a sheriff, constable, marshal, police 
officer, or agent above mentioned has reason to believe 
that any person within his jurisdiction is about to violate 
the provisions of section 13378, he must forthwith arrest 
such person, and take him before a justice of the peace, 
mayor, or police judge.2 

13. Said section 13378 provides that whoever engages in 
or is employed at cock-fighting, dog-fighting, bear-baiting, 
pitting one animal against another of the same or of a 
different kind, or any similar cruelty to animals, or 
receives money for the admission of any person to any place 
kept for any such purpose, or uses, trains, or possesses a 
dog or other animal for the purpose of seizing, detaining, 
or maltreating, any domestic animal, shall be fined not 
more than one hundred and fifty nor less than five dollars, 

1 § 13491. 

2 § 13478. 

Upon the proper affidavit being filed, such officer must hear the 
witnesses produced, on oath, and if he find the complaint true, order 
the accused to enter into a recognizance, with sufficient sureties, In 
a sum not less than one hundred dollars nor more than five hundred 
dollars, that he will not violate the provisions of said section 13378 
within one year thereafter, within this state, and in default of such 
recognizance the officer must commit the accused to jail, there to 
remain until such order is complied with, or he is otherwise discharged 
by due course of law, or until he makes and subscribes an oath, in 
the presence of two witnesses, that he will not violate the provisions 
of said section. Severe penalties are provided for subsequent con¬ 
victions. § 13491. 


CRUELTY TO CHILDREN, ETC. 


223 


or imprisoned not more than thirty nor less than ten 
days; and that any one who knowingly purchases a ticket 
of admission to any place mentioned in this section, or is 
present thereat, or witnesses such spectacle, shall be deemed 
an aider and abettor. 

14. Who may require officer to make arrest. A member 
of any such association may require the sheriff of any 
county, the constable of any township, the marshal or 
policemen of any city or village, or the agent of any such 
association, to arrest any person found violating the laws 
in relation to cruelty to persons or animals, and to take 
possession of any animal cruelly treated, in their respec¬ 
tive counties, cities, or villages, and deliver the same to 
the proper officers of such associations. 1 

15. Fees. For such service, and for all services rendered 
in carrying out the provisions of this chapter, such officers, 
and the officers and agents of the association, must be 
allowed and paid such fees as they are allowed for like 
services in other cases. Such fees must be charged as costs, 
and reimbursed to the association by the person con¬ 
victed. 2 


1 § 10075. 


2 § 10080. 


224 


CONSTABLES, MARSHALS, ETC. 


CHAPTER 35. 

DOMESTIC ANIMALS AT LARGE. 


1. Any constable, or supervisor of any township, or 
any marshal or constable of any city or village, must, on 
view or information, and any person may, on finding at 
large any animal or animals mentioned in paragraph 3 be¬ 
low, take up and confine such animal or animals at once, 
and give notice of such taking up to the owner, if known, 
and if not known, by posting notices describing such ani¬ 
mals therein, in at least three public places within the town¬ 
ship; and if the owner does not appearand claim his prop¬ 
erty, and pay all charges for taking up, advertising, and 
keeping the same, within ten days from the date of the 
notice, the animals may be proceeded wdth under the laws 
regulating estrays. 1 

2. The mere act of any such animal running at large in 
or upon any of the places mentioned in paragraph 3 will be 
prima facie evidence that such animal is so running at large 
contrary to law; but if it be proven that such animal es¬ 
caped from tbe owner or keeper thereof without his knowl¬ 
edge or fault, then it must be given up to the owner or 
keeper, upon payment of a reasonable compensation for 
taking up and keeping it. 1 

3. What animals not to ''un at large without permit. The 
statutes provide that no person or corporation, being the 
owner or having the charge of any horses, mules, cattle, 
sheep, goats, swine, dogs or geese, shall suffer the same to 
run at large in any public road or highway, or in any street, 

1 §§ 5817, 14954-14965, for the law as to estrays or strays 

Cattle found running at large may be taken up. whether they are at 
large with or without the consent or fault of the owner. Within the 
meaning of the section the animals named are at large, contrary to 
the provisions of the law, when they are at large without the 
permission provided for above. Sloan v. Hubbard, 34 O. S. 583. 

The right to take up and coniine animals running at large, is not af¬ 
fected by the failure of tbe township trustees to establish a pound. Ib. 

Where, without the fault of the owner, a horse passes from such 
owner’s inclosure over or through a line fence into tlm inclosure of 
an adjoining proprietor, and thence through a gap in a fence into the 
inclosure of another and adjacent proprietor, he is not running at 
large contrary to the provisions of section 5809: and no person is 
authorized to take up and confine him until the owner nav or tender 
compensation or other charges, as provided by sections 5817 and 5820. 
Rutter V. Henry, 46 O. S. 272. 


DOMESTIC ANIMALS AT LARGE. 


225 


lane, or alley, or upon any uninclosed land, or cause 
such animals to be herded, kept, or detained for the pur¬ 
pose of grazing the same on premises other than those 
owned or occupied by the owmer or keeper of such animals, 
except as provided in paragraph 4 below. 1 

4. Permits for animals to run at large. General permission 
may be granted by the commissioners of any county for any 
animal named in the preceding paragraph to run at large in 
their respective counties. In counties where there is no 
general permission, township trustees may grant special 
permits, directed to individuals, and for particular animals 
described therein, revokable at the discretion of the town¬ 
ship trustees, upon three days’ notice in writing to the 
owner of such animal. Such permission, -whether general 
or special, terminates on the first Monday of March, in each 
year; but no permit can be granted for any swine to run 
at large. In case any person permits any swine belonging 
to him, or being under his control, to run at large, he will 
thereby be deprived of the benefit of any permit issued to 
him, as to any domestic animals whatsoever, and also of the 
benefits of any general permit issued by the county com¬ 
missioners, and will be subject to all the fines and penalties 
provided in paragraph 5 below'. 2 

5. Penalty. If any constable, supervisor, or marshal, 
above named, willfully neglects to perform any of the du¬ 
ties above required, he may be fined not more than twenty- 
five dollars, or imprisoned not more than ten days, or 
both. 3 

6. Fees for taking up animals. The person or officer taking 
up any such animal is entitled to charge and receive from 
the owner the following fees, in addition to those authorized 
by the law regulating estrays, to wit: for taking up and ad¬ 
vertising each animal of the horse or mule kind, one dol¬ 
lar; each head of neat cattle, seventy-five cents; each 
swine, fifty cents; each sheep or goose, twenty-five cents, 
and also reasonable pay for keeping the animal or animals; 
but for taking up any single herd or flock, the fee can not 
exceed five dollars, whenever the flock or herd belongs to 
one person. 4 


* ooou, 

Any person violating the provisions of this paragraph is liable to 
forfeit and pay for every such violation, as penalty therefor, not less 
than one dollar, nor more than five dollars; and continued violation, 
after notice or prosecution, must be held to lx; an additional offense 
for each and every day of such continuance. Ib. Rutter v. Henry, 
46 O. S. 272. 

2 § 5811. 3 § 12938 4 § 5820. 



226 


CONSTABLES, MARSHALS, ETC. 


Strays. 

7. Who may take up strays; his duties, etc. Any person 
holding in possession land in this state for three years or 
more, by deed, title bond, or lease, may take up any stray 
animals running at large within his township. No one else 
is entitled to the fees specified in paragraph 11, below. 1 

8. Such person must, within three days, leave a descrip¬ 
tion of the stray or strays, their marks, brands, etc., with 
the township clerk, and within five days must post such 
description in three places in the township, and must send 
to the clerk of the court a fee of twenty-five cents, and 
such description of all such strays except hogs or sheep. 
If no one claims such strays within twenty days, the taker- 
up must go before a justice of his township and make oath 
as to where he found the strays, etc., and pay him a fee of 
twenty-five cents. Such justice must cause them to be ap¬ 
praised and described by two freeholders, and this appraise¬ 
ment and description must be recorded in the justice’s 
stray book. 2 

9. Warrant of release. If any other person than such as 
mentioned in paragraph 7, above, takes up any such strays, 
the justice must, on complaint made, issue his warrant to 
the constable for the removal of such strays, and their de¬ 
livery to some resident of the township owning or holding 
land as set forth in paragraph 7, above; and if no such 
resident will receive the strays, the constable must suffer 
them to go at large, to be taken up by some one legally 
qualified, as stated in paragraph 7. 3 

10. Strays outside of settlement. Any person may take up 
any stray or strays at large outside the bounds of any set¬ 
tlement. Such person must then proceed as directed in 
paragraphs 7 and 8, above; but if he be not such freeholder 
as described above, and a resident of the county, he must 
give to the justice security for the safe-keeping and deliv¬ 
ery of such strays to their proper owner; and if he do not 
give such security, the justice must issue his warrant to the 
constable as specified in paragraph 9, above, and the con¬ 
stable must proceed under it just as directed in that para¬ 
graph. 4 

11. Reclaiming stray; fees; sale of strays by constable. The 
owner of any such stray may, within four months after its 
taking up, prove his ownership before the justice, and re¬ 
ceive the animal, first paying the taker-up as follows: for 
each animal of the horse kind, one dollar; for every head 

1 § 14954 . 2 §§ 14956 - 14957 . =§ 14958 . <§ 14959 . 


DOMESTIC ANIMALS—STRAYS. 


227 


of neat cattle, fifty cents; for every sheep, liog, or goat 
above six months old, twelve and a half cents, together 
with the legal fees paid by the taker-up, and reasonable 
charges for keeping such strays; but if the taker-up and 
the owner disagree on the sum to be paid for keeping, either 
party may apply to a justice in the township to nominate 
three disinterested freeholders, to make sucn allowance for 
keeping such strays as to them shall appear j ust, and forth¬ 
with certify the same under their hands to such justice 
upon oath. If the owner fails or refuses to pay the sum ad¬ 
judged, and said fees, within forty days thereafter, the 
taker-up may deliver such stray or strays to any constable 
of the township, who must, after giving ten days’ notice by 
advertisement at three of the most public places in the 
township, of the time and place of sale, proceed to sell them 
for ready money to the highest bidder, to satisfy the costs 
and said charges. The constable, after paying to the taker- 
up said fees and charges, and deducting one dollar for his 
own fees, must pay the remainder to said owner. 1 

12. When taker-up becomes owner; constable’s duties. When 
the appraised value of any stray or strays of the same 
species so taken up, does not exceed seven dollars for the 
whole number taken up and reported at one time, and no 
person appears within four months after such taking up, 
and proves his or her right thereto, the right to such stray 
or strays vests in the taker-up; but if the valuation ex¬ 
ceeds seven dollars, and no owner so appears, the taker-up 
must apply to the justice designated in paragraph 8, for a 
copy of the appraisement there mentioned, which the jus¬ 
tice must furnish, and which the taker-up must forthwith 
deliver to a constable of the township. This constable 
must immediately advertise such stray or strays for sale, at 
three public places within the township, mentioning the 
time and place of sale, which must be at least ten days 
from the time of advertising, and which sale must be made 
at some public place in said township, if the stray be of 
the horse kind, but it of any other kind of strays, it must 
be sold at the residence of the taker-up between the hours 
of ten o’clock a. m. and four o’clock p. m., at which time 
and place the taker-up must deliver such stray or strays to 
the constable, and take his receipt therefor, and transmit 
the same to the township treasurer. 2 

13. Sale and adjustment , etc., of proceeds, etc. The constable 
must proceed to sell such strays to the highest bidder, upon 
a credit of nine months, for the residue of the purchase 
money, after paying the expense of taking up, posting, and 
keeping, and one dollar as his own fees. This expense must 


i § 14960. 


2 § 14961. 


228 


CONSTABLES, MARSHALS, ETCo 


be ascertained as directed in paragraph 11, After paying the 
above expenses and fees, the constable must take an obliga¬ 
tion from the purchaser for the balance due, with one or more 
sufficient sureties resident within the township, payable to 
the township treasurer, or his successor in Office, and de¬ 
liver it to the said treasurer. The constable must take du¬ 
plicate receipts for strays so sold, one of which receipts he 
must file with the township clerk, together with his certifi¬ 
cate, stating to wffiorn said property was sold, and the 
amount for which it was sold. 1 

14. If any stallion, one and a half years old, or upward, is 
found running at large out of the inclosed ground of its 
owner or keeper, any person may take it up, and at once 
give notice to its owner or keeper, if known; and if he do 
not appear within three days thereafter, and pay to the 
said taker-up, two dollars as a compensation for his trouble, 
the taker-up must proceed to advertise said horse; and the 
same proceedings must be had, in every respect, as herein¬ 
before provided in cases of stray horses; and the taker-up 
may, after the expiration of twenty days from the time of 
advertising, geld, or procure to be gelded, the said horse, at 
the risk and expense of the owner. 2 

Drifts. 

15. Boat, raft, etc., adrift, may be taken up. Any person 
or persons finding any boat, water-craft, raft, or piece of 
raft, or other valuable property gone or going adrift, within 
this state, or any of the waters adjoining thereto, may take 
up and secure the same ; and if no person claims or proves 
his right thereto within thirty days thereafter, the taker-up 
must cause it to be viewed by two freeholders or house¬ 
holders of the township, who must, after such view, give a 
written description and appraisement of said property, and 
certify the same under their hands; which certificate the 
taker-up must deliver within five days to some justice of 
the peace within the township. This justice must make a 
record thereof in his stray book; and must send this cer¬ 
tificate to the clerk of the court of the county. 3 

16. If the taker-up is not a freeholder or householder, 
within the county, the justice may require him to give se¬ 
curity, as in the case # of stray animals, in paragraph 10. 
If not given, the justice may take such property into his 
own possession, or deliver it to any freeholder in the town¬ 
ship, who must take charge thereof; and the same proceed¬ 
ings must be had as in case of persons taking up stray ani¬ 
mals under this chapter. 4 

1 § 14902. 3 § 14965. 3 §§ 1496G, 14967. * § 14967. 


DRIFTS. 


229 


17. How owner of drift may reclaim it. The owner of such 
property, on proving his right thereto, within two months 
after its taking up, and paying to the taker-up, for each flat 
or keel boat, scow, or lighter, and for each skiff, pirogue, or 
other valuable property, such reward or compensation as 
said justice shall deem reasonable, together with the fees 
allowed by this chapter, will be entitled to demand and 
receive such property so taken up. 1 

18. When drifts to be sold by constable; how, etc. If the ap¬ 
praised value of such boat or other property does not ex¬ 
ceed five dollars, and if no person appears and proves 
his right thereto within two months after its taking up, the 
right of such boat or other property will vest in the taker- 
up ; but if the value exceeds five dollars, and the owner 
does not so appear and prove within two months, then the 
taker-up must deliver the property to any constable of the 
township, and take his receipt therefor; and the constable 
must proceed to advertise, sell, and pay over the money 
arising therefrom, as directed in the case of stray animals, 
in paragraphs 12 and 13 of this chapter. 2 

19. On the shores of Lake Erie. If the appraised value of 
any boat or craft, taken upon the shores of Lake Erie, do 
not exceed eight dollars, and no person appears and proves 
his right thereto, within said two months, such boat or 
craft, or other property, will belong to the person taking it 
up. 2 

20. The clerks, justice, treasurer, and others mentioned in 
this chapter have other duties to perform in such cases, 3 
which are not given here, because only so much is stated 
here as will intelligibly show what are the constable’s 
duties. 

1 § 1496S. 

2 8 149(59. 

* §§ 14954-14965. 

Among these provisions are the following, some of which apply to 
the constables, as well as to others: 

Sec. 14972. If any person shall neglect to perform any of the duties 
required by this chapter, or shall do any thing contrary thereto, such 
person shall forfeit and pay a sum not exceeding one hundred dollars, 
nor less than one dollar, to be recovered by action before any court 
having cognizance thereof, and shall, moreover, be liable to the 
action of the party injured; and it is hereby made the duty of each 
township treasurer to sue for, and collect and pay over, all moneys 
arising by virtue of any forfeiture incurred as aforesaid. 

Sec. 14973. All suits brought in behalf of the township, under 
the provisions of this chapter, shall be prosecuted by the treasurer 
thereof, in the name of the trustees of the township, any thing in 
this chapter to the contrary notwithstanding. 

Sec. 14974. In every case, when any freeholders, or householders 
perform any services under the provisions of this chapter, they shall 
each be entitled to receive the sum of fifty cents for each day they 
may be actually employed, to be paid at the time of service, by the 
person or persons taking up such stray or sti’ays. 


230 


CONSTABLES, MARSHALS, ETC. 


21. Further, as to timber, saw-logs, ties, sawed lumber, staves, 
etc., adrift. A later statute than the foregoing parts of this 
chapter 1 further provides that every person who takes 
up and secures and delivers to the owner thereof any 
saw-logs or trees prepared for the purpose of sale, or any 
cross or railroad ties, boards, planks, staves, heading, or 
other timber prepared for market, found adrift in the Ohio 
river and the rivers and creeks within the State of Ohio, 
may collect from the owner, before delivery, if required, as 
follows: For each saw-log or other log or tree prepared for 
sale, thirty inches or less in diameter, twenty-five cents, 
and for all others fifty cents each; for catching and secur¬ 
ing oak logs that are not less than eighteen inches in diam¬ 
eter at the top and fifty feet or more in length, not exceed¬ 
ing seventy-five cents each; for each cross or railroad tie, 
six cents; for boards or planks, if caught in rafts or large 
bodies, fifty cents per thousand feet, board measure; for 
twenty thousand feet, or a less quantity, and over twenty 
thousand feet, twenty-five cents per thousand feet, board 
measure; but if the same be not in rafts, but loose and 
scattered, two dollars and fifty cents per thousand feet, 
board measure; and for staves and heading, three dollars 
per thousand for all such as are marketable. If the owner 
of any such property fail to pay the sums so chargeable 
thereon within sixty days from the day they are so taken 
up, they may be sold at the instance of the person to whom 
such charges are due, by a‘constable or the sheriff of the 
county, at public auction to the highest bidder, upon thirty 
days’ notice posted on the front door of the court-house of 
the county in which the sale is to be made; and at the place 
of sale the officer making it must, from proceeds thereof, 
pay to the taker-up the sum to which he is so entitled, and 
retain the balance, after deducting his commissions (which 
are the same as upon sales under execution!, for the use of 
the owners. If no person appears and establishes his right 
to such proceeds within one year after such sale, the officer 
must place them to the credit of the distributable school 
fund of his county, and report the amount thereof to the 
county auditor. 2 

1 On June 1, 1883, “An act for the more effective protection of per¬ 
sons dealing in timber” was passed, which may be found in volume 
88, Ohio Laws, p. 195, or in Giauque’s Revised Statutes, §§ 10144- 
10150. This act relates chiefly to trade-marks for timber; but its 
section 6 is in substance as given in paragraph 21, above. It is no 
part of the chapter of the General Code relating to strays and drifts, 
and the references to that chapter in paragraph 22, and in others 
above, do not apply to paragraph 21. 

2 §§ 6233-6240 ; 80 v. 195, § 6. 


STOLEN AND ABANDONED PRORERTY. 


231 


Abandoned or Stolen Property. 

22. How disposed of. Whenever any property abandoned, 
stolen, or supposed to have been stolen, comes into the 
possession of any constable or other person, except a po¬ 
liceman or city marshal, and remains in the possession of 
said officer or person for a period of thirty days without 
being reclaimed by the owner, said property, if an animal, 
must be disposed of as provided in this chapter in regard 
to estrays; if other than an animal, it must be disposed of 
as provided in this chapter in regard to drifts. 1 (See note 
1 on page 230.) 

i § 14975. 


232 


CONSTABLES, MARSHALS, ETC. 


CHAPTER 36. 


ELECTIONS, AND MINISTERIAL OFFICERS’ DUTIES 
RELATING THERETO. 


1. Township election notice issues to constable. At least twenty 
days before the annual township meeting, the trustees must 
issue their warrant to a constable of the township, direct¬ 
ing him to notify the electors of such township to assemble 
at the time and place appointed for the annual meeting. 
Said warrant must enumerate the officers to be chosen at 
such meeting. 1 

2. How such notice served. The constable who receives 
such warrant must notify the electors of the township, by 
setting up copies of such warrant in at least three public 
places in such township, at least ten days before the meet¬ 
ing of the electors. 2 

3-7. Form of constables copy of such notice: 

NOTICE OP ELECTION. 

To A. B., constable of Bartlow township, Henry countv, 
Ohio: 

You are hereby directed to notify the electors of said 

township to assemble at-, in the village of Deshler, in 

cxilu township, on the -day of April, 19—, between the 

1 ours of six a. m. and six r. m., for the purpose of choosing 
the following officers of said township, to wit: 

[Here are mentioned the toumship officers to be elected. \ 

S. T., 

U. V., 

W. X., 

Attest: Trustees of said Township. 

Y. Z., Clerk of said Township. 

I certify the above to be a true copy of the warrant of 
election issued to me on the-day* of March, 19—. 

A. B., Constable of Bartlow Township. 

1 § 4832. 

On application of two or more freeholders of the township, for that 
purpose, the trustees must insert in said warrant such other business, 
matter, or thins, as may be proposed to be submitted to said town¬ 
ship meeting. § 4832. 

2 § 4833. 

Where the office of one or more of the trustees is vacant, the town¬ 
ship, clerk, together with the trustee or trustees in office, must issue 
said warrant. § 4833. 




ELECTIONS—DUTIES RELATING THERETO. 233 


8. The township trustees, at every election or township 
meeting, have power to cause any disorderly person to be 
removed, and, if necessary, confined until the close of such 
election, or meeting; and every constable present must 
obey their orders and directions, for the purpose of preserv¬ 
ing order at such meeting. 1 

9. Notice to township officers elected or appointed. The town¬ 
ship clerk must, at once, after the election or appointment 
of township officers, make out a list of all the officers 
elected or appointed, stating the offices to which they are 
respectively chosen or appointed, and add thereto a requi¬ 
sition that they severally appear before him or some other 
officer authorized to administer oaths, and take the oath of 
office and give bond (if required by law to give bond) 
within ten days after such election. 2 

10. Constable must serve such notice; how. The said clerk 
must at once make service of such list and requisition by 
delivering to each person so elected or appointed a copy 
thereof; or, such list may be delivered to any constable of 
said township, who must make such service thereof; and 
said list and requisition, with the time and manner of serv¬ 
ice thereon, must be returned and filed in the office of said 
clerk. 2 

11-16. This list of township officers elected may be as follows: 
The State of Ohio, -- county,-township, ss. 

To any constable of said township, greeting: 

The following is a list of the officers of said township, 
elected on Monday, the-day of April, a. d. 18—, show¬ 

ing the names of the persons chosen, and to what offices, 
respectively, to wit: 

C. D. was elected township clerk; E. F. was elected town¬ 
ship treasurer; G. H., I. J., and K. L. were elected town¬ 
ship trustees; N. 0. and P. Q. were elected constables; R. 
S., T. U., and V. W. were elected assessors; X. Y., Z. A., 
B. C., D. E., F. G., H. I., and J. K. were elected supervisors 
of roads for the [ state what] districts respectively. 

You are hereby directed to notify, forthwith, each of the 
above named persons of his election as aforesaid, by deliv¬ 
ering to them each a certified copy hereof, and that they 
are severally required to appear, within ten days after said 
election, before me, or some other officer authorized to ad¬ 
minister oaths, and take the oath of office, and give bond, 
as required by law. You will then at once return this list 
to me, with a statement thereon of the time and manner of 
the service thereof. 

Done at my office in said township, this-day of-> 

a. 19 —. L. M., Township Clerk. 

17. Constable’s certificate on copies delivered. The constable 

2 § 3263. 


i § 3280. 



234 


CONSTABLES, MARSHALS, ETC. 


should make a certificate, substantially as follows, on each 
copy of this list he delivers to any officer elected or ap- 
pointed. 

18-19.— 

I certify the within to be a true copy of the original list 
received by me from the township clerk. 

A. B., Constable. 

20. As to the return of the original list to the township clerk , 
As already stated in paragraph 10, above, the constable 
must return the list which the township clerk gives to him, 
to that officer, first making a ststement on the list as to how 
and when he made the required service of such list. 

21-23. Form of statement on the original list: 

On the-day of April, 18—, I notified the within named 

C. D., E. F., G. H., I. J., K. L., N. O., P. Q., R. S., T. U., V. 
W., X. Y., Z. A., B. C., D. E., F. G., H. I., and J. K., oi 
their election, as within mentioned, by delivering to each a 
certified copy of this list. 

Dated April -, 19—. A. B., Constable. 

24. If these persons were not all served on the same day, 
the statement must specify on what days each person was 
served, as follows: 

25 — 

On the-day of April I notified the within named A. 

B., C. D., E. F. [naming all served on that day], and on the 

- day of April I notified the within .named G. H., I. J., 

L. N. [naming all served on that day; and thus specify 
wliat teas done each day] of their election [and finish as in 
the preceding form]. 

26. Duty of registrars, judges, and peace officers, etc., to 
preserve order at. It is, of course, as much the duty of all 
officers having police power at the places of holding elec¬ 
tions to preserve order and to cause the laws to be obeyed 
at times of holding elections as at any other time; and it 
is especially enjoined on the police of cities, in various 
sections of the statutes, to preserve order, to protect voters, 
etc., thereat.i 

1 § 4887. 





DEPOSITIONS, ETC. 


235 


CHAPTER 37. 

DEPOSITIONS—POWERS AND DUTIES OF CONSTA- 
BLES AND OTHERS CONCERNING THEM. 


1. Before whom depositions taken; constables , etc., must obey. 
As constables, marshals, and certain other officers must 
serve writs issued to them by officers authorized to take 
depositions, as will further appear below in this chapter, 
and as they should know whom so to obey, it is here stated 
that depositions may be taken in this state before a judge 
or the clerk of the supreme court, a judge or clerk of the 
circuit court, a judge or clerk of the common pleas court, 
a probate judge, justice of the peace, notary public, mayor, 
master commissioner, official stenographer of any court in 
this state, or any person empowered by a special commis¬ 
sion; but depositions taken in this state, to be used therein, 
must be taken by an officer or person whose authority is 
derived within the state. If to be used out of the state, 
they may be taken before a commissioner or officer who 
derives his authority from the state, district, or territory in 
which they are to be used. 1 

2. How attendance of witness secured; subpena. Probably in 
most instances arrangements are made with the witnesses 
to have them attend and testify without legal process. 

3. When the attendance of a witness before an officer au¬ 
thorized to take depositions is required and is not so se¬ 
cured, a subpena must be issued by that officer. 2 

4. The form of the subpena is so much like the one given 
in paragraphs 13-17 of Chapter 7, that it need not be 
repeated here. 

5. By whom served . The subpena may be served by the 

1 §§ 11529, 11530. 

2 8 11502. 

But a witness can not be compelled to go out of the county where 
he resides, or may be subpenaed, to give his deposition ; nor can he 
be compelled to testify till he is paid his mileage and fees for one 
day’s attendance. See more fully, §§ 11506-11509. 

The Cuyahoga Common Pleas Court, 1879, decided that a notary has 
no power to issue a subpena duces tecum, and can not commit a wit¬ 
ness for contempt for refusing to produce books, papers, etc. See 4 
Bull. 457; 3 Bates’ Dig. 437; Clev. Rep. 210. 


236 


CONSTABLES, MARSHALS, ETC. 


sheriff, the coroner, any constable of the county, by the 
party, or by any other person. 1 

6. How served; return as to. The subpena is served by 
either reading, or by copy delivered to witness, or left at 
his usual place of residence; but the copy need not contain 
the name of any other witness.' 2 On the back of each copy 
the officer or person serving should certify as directed in 
paragraph 13 of Chapter 5; and on the original subpena he 
should make a return such as directed in paragraphs 26-34 
of Chapter 7< See also paragraph 7 of Chapter 5 as to orig¬ 
inal writs. 

7. Effect of disobedience by witness, generally. A witness, 
duly subpenaed, may render himself liable to punishment 
concerning which a ministerial officer may have duties to 
perform, in two ways, each of which will be considered 
separately below. First. By neglecting or refusing to ap¬ 
pear at the time and place of testifying, as commanded by 
the subpena. However, a witness need not, generally, attend 
to give his deposition out of the county where he resides, 
or the county in which the subpena was served upon him. 3 
Second. By refusing to be sworn, to answer or sign the depo¬ 
sition, if he does so appear. But a witness may demand his 
traveling fees, and fee for one day’s attendance, before he is 
sworn; and, if not paid, he is not bound to testify. If he 
attends the second day of taking depositions, he may de¬ 
mand his fees also for that day before testifying. 4 

8. First. Witness not appearing, may be attached. When a 
witness fails, without lawful excuse, to attend in obedience 
to a subpena, he may be punished for a contempt of the 
officer who issued tL e subpena, as further shown in para¬ 
graphs 20-24, below; and the officer before whom his at¬ 
tendance is required may issue an attachment to the sheriff, 
coroner, or a constable of the county, commanding him to 
arrest and bring the person therein named before such court 
or officer, at a time and place to be fixed in the attachment, 
to give his testimony, and answer for the contempt. 5 

9. As to requisites and form of writ of attachment. This writ 
of attachment must be under the seal of the officer issuing 
it, if he have an official seal, and must specify particularly 
the cause of the arrest. 6 Its form will be, in a general way, 
like the one given in paragraphs 2-7 of Chapter 10. 

1 § 11504. 

When a subpena is not served by the sheriff, coroner, or constable, 
proof of service must be shown by affidavit, but costs of such service 
can not be taxed. § 11504. 

2 § 11505. 

It seems that the law does not permit a subpena concerning deposi¬ 

tions to be served by stating its contents to the witness. Compare 

paragraph 6, above, with paragraph 6 of Chapter 7, and also the 
returns in these chapters. 

2 See note 2 , page 235 . ‘ § 11508 . « § 11611 . • § 11515 . 


DEPOSITIONS, ETC. 


237 


10. Bond for appearance of witness. If the attachment 
is not for immediately bringing the witness before the 
court or officer, a sum may be fixed in which the witness 
may give an undertaking, with surety, for his appearance, 
which sum must be indorsed on the back of the attachment, 
and if no sum is so fixed and indorsed, it must be one 
hundred dollars.* 

11-15. Form of such undertaking : 

The State of Ohio, - county, ss. 

Whereas, E. F., by process of attachment issued by Rich¬ 
ard Roe, a notary public in and for said county, has been 

arrested as well to answer the State of Ohio, on the - 

day of -, a. d. 19 —, at — o’clock a. m. [or, p. m.], 

before Richard Roe, a notary public in and for said county, 
at his office [or state inhere'], for a contempt by him, the 
said E. F., committed, as is alleged, in disobeying a 
subpena issued by said notary, and duly served upon him, 
as also to then give liis testimony, by deposition, in an 
action pending in the court of common pleas of Henry 
county, Ohio, wherein E. F. is plaintiff and G. H. is 
defendant [etc., as the facts may be]. 

Now, therefore, we, the said E. F., and L. M. and S. N., 
his sureties, do hereby, in pursuance of the statute in such 
case made and provided, promise and undertake, if the said 
E. F. shall not personally appear before said Richard Roe, 
at the time and place designated by said writ of attach¬ 
ment, as above mentioned, to give his testimony and 
answer for said contenlpt, that we will pay the State of 
Ohio the sum of [if no sum be indorsed on the attachment, 
insert one hundred] dollars. 

Done this - dav of -■, A. D. 19—. E. F., 

L. M., 

S. N. 

16-20. Farm of return to the attachment, if no bond is 
given: 

May —, 19—. I have the body of the within named 
Q. R. [or, the within named Q. R. not found in my juris¬ 
diction]. A. B., Constable. 

[Give items of fees.] 

Form of same, if bond is given; 

May —, 19—. I attached the body of the within named 
Q. R. who, with L. M. and S. N., his sureties, gave the un¬ 
dertaking for his appearance, etc., herewith returned; 
whereupon I discharged said Q. R. from custody. 

[Items of fees.] A. B., Constable. 

21. Rule to show cause. If the witness was not served per¬ 
sonally with the subpena, the court may, by a writ called a 
rule order him to show cause why an attachment should 
not issue against him. 2 Such a writ is similar in many re- 

i § 11511. 2 § 11511. 







238 


CONSTABLES, MARSHALS, ETC. 


spects to the order of attachment in paragraphs 2-7 ol 
Chapter 10, and it must be served in much the same way. 

22. Second. Witness refusing to answer, etc., may be fined or 
imprisoned. If the witness refuses to be sworn, or to answer 
as a witness, or to subscribe a deposition, when lawfully or¬ 
dered, he may be punished, as for a contempt of the officer 
by whom his testimony is required, 1 by being fined by that 
officer in a sum not exceeding fifty nor less than five dol¬ 
lars, or by being imprisoned in the county jail until he sub¬ 
mit to be sworn, testify, or give his deposition. 2 

23. The order of commitment to prison in such case may be 
directed to the sheriff, coroner, or any constable of the 
county where such witness resides or is at the time; and 
must be under the seal of the officer, if he have an official 
seal, and must specify particularly the cause of commit¬ 
ment ; and if it be for refusing to answer a question, such 
question must be stated in the order. 3 

24. Since the law gives the magistrate or notary power to 
commit the witness for contempt, this is one of the matters 
over which he has jurisdiction, and in which the minis¬ 
terial officer must obey the writ of commitment, even if it 
specify but incompletely the cause of commitment and the 
question required by the preceding paragraph to be speci¬ 
fied. The principles stated in paragraphs 26-28 of Chapter 
5; 12-23, Chapter 22; and 3, 4, of Chapter 25, would govern 
here also. 

25. How order executed. The order of commitment must 
be executed by arresting the witness and committing him 
to the jail of the county, and delivering a copy of the order 
to the jailer. 4 

26. The form of the order of commitment will be similar to 
the form in paragraphs 10-16 of Chapter 27, except that its 
“ Whereas,” or first part, will probably be longer, to specify 
the cause of commitment, etc., as required by paragraph 23, 
above. 

27. Certificate on copy of writ left with jailer. Having con¬ 
veyed the witness to the jail, the constable must deliver 
him to the jailer, and at the same time deliver to the 
jailer a copy of the original order of commitment, on which 

1 § 11510. 

A notary is such an officer, and may punish for such contempt. 
De Camp v. Archibald, 50 O. S. 618. 

The general rule seems to be that the power of notaries to commit 
witnesses for contempt is wholly statutory, and it being a power in 
derogation of the rights of citizens, will be strictly construed. Ex 
parte Malinkrodt, 20 Mo. 493; Ramsey v. Foy, 10 Ind. 493 ; Melody 
v. Reab, 4 Mass. 473; Rosenplaenter v. Roessle, 54 N. Y. 262; Pike 
v. Jenkins, 12 N. H. 261 ; Benton v. Wickwire, 54 N. Y. 226; Rue 
v. Alter, 5 Denio, 119. 

A witness is not bound to answer any question that will directly 
or indirectly criminate himself, and he has the right to determine for 
himself whether the answer will have that effect. Warner v. Lucas, 
10 Ohio, 336. 

2 § 11512. * § 11516. * § 11516. 


DEPOSITIONS, ETC. 239 

copy the constable must make a certificate substantially 
as follows: 

May —, 19—. I certify that the within is a true copy of 
the original writ. A. B., Constable. 

28-31. Return on the original order of commitment. 
The constable must then make a return substantially as 
follows on the original order of commitment, and deliver 
it to the officer from whom he received it: 

May —, 19—. I executed this order by committing the 

within named Q. B. to the jail of - county, Ohio, and 

by delivering a certified copy of this order to the jailer 
thereof. A. B., Constable. 

32-33. Constable’s fees in this icrit: 


Service and return of commitment.. .$ .40 

Copy of order of commitment.25 

Mileage, 15 miles.90 

Transportation of prisoner. 00 

[Other items, if any.] 


Total .$ .00 


34. The officer may retain the deposition until all lawful 
fees are paid. He may also tax the costs of the sheriff, or 
other officer, who serves the process, and the fees of the 
witnesses; an;l may algo, if directed by the persons entitled 
to the fees, retain the deposition until the fees are paid.* 

1 §-11545. See also §§ 127, 134. 










240 


CONSTABLES, MARSHALS, ETC. 


CHAPTER 38. 

RELEASE OF SURETIES OF CONSTABLE, MARSHAL- 

ETC. 

1. Sureties of township officers. A surety of a constable, 
justice, or any township officer, may at any time notify the 
township trustees, by giving at least five days’ notice, in 
writing, that he is unwilling to continue as surety for such 
officer, and will, at a time therein named, make application 
to said trustees to be released from further liability upon 
his bond. He must also give at least three days’ notice in 
writing to such officer, of the time and place at which the 
application will be made. 1 

2. Sureties of constable or marshal. If a constable, or the 
marshal of a municipal corporation, neglect or refuse, on 
demand made for that purpose by a person entitled thereto, 
his agent or attorney, to pay all money received by him in 
his official capacity for the use of such person, a surety of 
such constable or marshal may give notice to the trustees 
of the township, or the council of the corporation, in which 
such constable or marshal resides, of his refusal or neglect 
to pay over money by him collected by virtue of his office, 
and that he is unwilling to continue as his surety. 2 

3. Proceedings in such case. The trustees or council, as the 
case may be, upon such notice being given, must immedi¬ 
ately inform the constable or marshal, in writing, of the re¬ 
fusal of his surety to continue as such, and that he is re¬ 
quired to give a new undertaking, conditioned according to 
law. 3 

4. If such constable or marshal give such undertaking, to the 
satisfaction of the trustees or council, within ten days after 
receiving such notice, the sureties upon the first undertak¬ 
ing will be released and exonerated from all further liabil¬ 
ity thereon. 8 

5. If the constable or marshal fail to give a new undertaking 
w ithin ten days after having received such written notice, 
such failure must be deemed and taken as a resignation of 
his office, and the trustees or council must proceed to fill 
such vacancy as is provided in other cases. 3 

6. For other provisions as to such failure to pay moneys 
collected, see paragraphs 37-43, Chapter 3. 

1 § 12203. » § 12198. 3 § 12199. 


FEES AND COSTS. 


241 


CHAPTER 39. 

FEES AND COSTS. 

In Civil Cases and Generally. 

1. Fees of constables. Constables duly elected and quali¬ 
fied are entitled to receive the following fees for services 
rendered: For service and return of copies, orders of ar¬ 
rest, warrant, attachment, garnishee, writ of replevin, or 
mittimus, forty cents, each, for each person named in the 
writ; for service and return of summons, twenty-five cents 
for each person named in the writ; for service and return 
of subpena, twenty-five cents for one person; for service on 
each additional person named in subpena, ten cents; for 
service of execution on goods or body, forty cents; for all 
money made on execution, four per cent; for each day’s at¬ 
tendance before justice of the peace, or jury trial, one dol¬ 
lar; for each day’s attendance before justice of the peace, 
on criminal trial, one dollar; for each day’s attendance be¬ 
fore justice of the peace in forcible detainer, without jury, 
one dollar; for summoning jury, one dollar; for mileage, 
twenty cents for the first mile, and five cents per mile for 
each additional mile; for assistants in criminal causes, one 
dollar and fifty cents per day, each; for transporting and 
sustaining prisoners, allowance made by the magistrate, 
and paid on his certificate; for serving all other writs or 
notices not herein named, forty cents, and mileage as in 
other cases; for copies of all writs, notices, orders, or affi¬ 
davits served, twenty-five cents; for summoning and swear¬ 
ing appraisers in case of replevin and attachment, one dol¬ 
lar in each case; advertising property for sale on execution, 
forty cents; for taking bond in replevin, and all other cases, 
fifty cents; for each day’s attendance on the grand jury, 
two dollars. 1 

2. Extra alloicancc on execution, attachment , and in 
replevin , etc. In addition to the fees now allowed by law to 
constables and other officers, upon executions, attachments, 
and in replevin, the court to which an execution, order for 
the delivery of property in replevin, or order of attachment is 
returnable, must allow the officer making return thereof, a 
reasonable compensation for any extraordinary trouble or 

1 §§ 3347, 4387, 8017. 



242 


CONSTABLES, MARSHALS, ETC. 


expense incurred by him, in the removal or preservation of 
any personal property levied on under said writ or order, 
which amount, when so allowed, must be taxed in the cost; 
but such officer can not in any case be allowed more than 
one dollar per day, each, for the services of the person or 
persons employed in the removal or taking care of said 
property ; and no allowance can be made, unless it appears 
to the court that the extraordinary services for which such 
allowance is asked, were necessary for the proper execution 
of such writ. 1 

3. Fees for writing advertisement. When an officer, in the 
due execution of his office, is required to write or set up an 
advertisement, he must be allowed for every such adver¬ 
tisement, twenty-five cents; and if the advertisement is 
required to be published in a newspaper, the officer must 
be ailowed twelve and a half cents in addition to the price 
thereof, to be taxed in the bill of costs; but constables can 
not be allowed more than twenty-five cents for advertising 
the sale of property taken in execution. 2 

4. Fees of officers attending examining court. Sheriffs, con¬ 
stables, marshals and their deputies, and watchmen, when 
required by an examining court to take charge of the de¬ 
fendant or defendants, during the examination of such de¬ 
fendant or defendants upon any charge for the commission 
of a crime or offense against the laws of this state, must be 
allowed the sum of seventy-five cents for rendering the 
service so required of them.* This sum must be taxed and 
paid in the same manner that the other fees of such officers 
are taxjd and paid in the same or like cases; but such offi¬ 
cers will not be entitled to receive fees for testifying upon 
such examinations, when acting as the officers of such ex¬ 
amining courts. 3 

5. Some miscellaneous fees. Constables, marshals, and other 
officers or persons who take up animals unlawfully at large, 
are aiso allowed fees as fully set forth in paragraph 6 of 
Chapter 35; for feeding, watering, and caring for certain 
animals, fees as stated in paragraph 15 of Chapter 34; for 
serving coroner’s writs, as stated in paragraphs 20-25 of 
Chapter 40; for taking up strays or drifts, and for some 
other miscellaneous matters, fees as stated in the table at 
the close of this chapter. 

6. Constable's fees for advertising township elections , etc. The 
constable who advartises the time of holding elections and 
notifies the township officers of their election, must be al¬ 
lowed a reasonable compensation therefor, to be fixed by 
the trustees, and paid out of the township treasury. 4 

7. Items of fees to be returned on process. No sheriff, coro¬ 
ner, or constable is entitled to receive, either on mesne or 
final process, any fees, unless he return, upon the process 

1 § 3009. 2 § 3005. 3 § 3010. i § 3346 . 


FEES AND COSTS. 


243 


upon which any charge shall have been made, the particu¬ 
lar items of such charge. 1 

8. Itemized bill of costs must be furnished if demanded. In 
all cases when demanded by any person liable to pay any 
fees or costs to any officer, it is the duty of such officer, 
without charge, to make out, sign and deliver to such per¬ 
son, an itemized bill of such fees or costs; and no person 
can be compelled, after such demand, to pay such fees or 
costs until such itemized bill is so made and delivered, with 
a receipt for the fees and costs paid. 2 

9. Penalties for overcharging. Severe penalties are pre¬ 
scribed for charging other or greater fees than the law al¬ 
lows, as may be seen more fully in paragraph 3 of Chapter 
33. 

10. Entitled only to fees specified by law. An officer whose 
fees are regulated by statute can charge fees for those serv¬ 
ices only to which compensation is by law attached. 3 

11. Appraisers’ fees. Persons called by an officer to ap¬ 
praise real or personal property on execution, replevin, or 
attachment, or to fix the value of exempted property, are 
entitled to receive one dollar per day, except as otherwise 
specially provided and commi»»ioneu to make partition, 
to assign dower; two dollars each day and if laid in more 
than one county two dollars and a half per day. 4 

Costs in Criminal Cases, how Collected, etc.; 
Allowance for, by County, etc. 

12. When security for costs may be required. When the of¬ 
fense charged is a misdemeanor, the magistrate may, before 
issuing the warrant, require the complainant to" become 
bound for the costs, or, if he considers the complainant 
wholly irresponsible, that he procure some other person to 
become bound for the costs, in case the complaint be dis¬ 
missed ; but no such bond can be required of constable, 
marshal, or other ministerial officer when in the discharge 
of his official duties. 5 No such security can be required 
when the offense charged is a felony. 

13. Magistrate to tax costs against accused, when. In all 
causes in which a justice of the peace has power to fine a 
person charged with the commission of an offense, such 
justice must render judgment for such fine, and tax such 
costs, for himself, the constable, and witnesses, as are al¬ 
lowed by law. 6 

14. May collect same; Jww. The magistrate may issue exe¬ 
cution on such judgment, with costs taxed against the of¬ 
fender, to be levied on his personal property, and for want 

i § 3038. 2 § 3039. 

3 Debolt v. Trustees Cincinnati Tp., 7 O. S. 237. 

* § 300G. 5 § 13499. 6 § 3022. 


244 


CONSTABLES, MARSHALS, ETC. 


thereof, upon the body of such offender. On this execu 
tion the officer may pursue the offender and arrest him it* 
any county in the state, and convey and commit him to the 
jail of the county whence the execution issued, where he 
must remain until the fine and costs are paid or secured to 
be paid, or he is otherwise discharged according to law. 1 

15. Will be paid by county , when. When a defendant is 
convicted of a felony , the costs of the magistrate, constable, 
marshal, and witnesses are paid out of the county treasury. 2 
In no other case will any such costs be paid by the state 
or county to any of said officers. 3 But in some cases certain 
allowances will be made as follows: 

16. The county commissioners may, at any regular session, 
make an allowance to any of said officers in lieu of fees, in 
causes of felonies wherein the state fails, and in misdemean¬ 
ors, wherein the defendant proves insolvent; but the ag¬ 
gregate amount of such allowances to an officer in any year 
can not exceed the fees legally taxed to him in such causes, 
nor can the aggregate amount allowed to an officer in any 
year exceed one hundred dollars. 4 

17. Expense of pursuing felon. The county commissioners 
may allow and pay any necessary expense incurred by an 
officer in the pursuit ot a person charged with a felony, who 
has fled the country, in addition to the allowance provided 
for in the preceding paragraph. 5 

18. How allowance made. In ascertaining the amount of 
fees taxed by any magistrate, with a view to making him 
the allowance hereinbefore mentioned, it must be made to 
appear in cases where such officer was authorized to take 
security for costs, that he has exercised reasonable care in 
taking such security, and until satisfied by the certificate of 
such magistrate, before whom such causes were heard, or 
other proof to the satisfaction of the commissioners, that 
the prosecuting witness was indigent, and entirely unable 
to pay the costs or procure security for the payment of the 
same, and t.iat the officer exercised due care ia taking such 
security; the officer’s fees in such causes shall not be in- 

1 S§ 13718, 13719. 

2 § 3016. As to meaning of felony, etc., par. 33 of Chapter 22. 

3 § 3017. 

4 § 3019. 

All fees due the above named officers in cases of misdemeanor must 
be paid into the county treasury when collected, unless it be ascer¬ 
tained that the amount of such fees was not allowed for as above 
mentioned. §§ 3021, 3023. 

5 § 3015. 

But there must be. before the pursuit, a legal charge or complaint 
made to a proper officer or court, and not a mere intention to com¬ 
mence a prosecution in case the offended be apprehended. W. 170. 
Proof satisfactory to the commissioners of the county that the serv¬ 
ices have been rendered, and that the charges are reasonable, is also 
generally required. 


245 


FKES AND COSTS. 


eluded in ascertaining the amount so to be allowed. 1 And 
the same rule is generally followed as to constables’ and 
marshals’ costs. 

19. Where such officer takes security for costs that is in¬ 
sufficient at the time of taking the same, the commissioners 
can not take into account his fees in such case, in making 
an allowance therein to him. 2 

20. Where a recognizance, given in a case of felony, is 
collected, the county commissioners may, out of the amount 
paid into the county treasury, pay any or all the expenses 
incurred by any person in procuring the arrest of the ac¬ 
cused, in addition to the fees allowed by law. 3 

21. As to rewards for arrest, etc., of criminals. The county 
commissioners may offer rewards for detecting or arresting 
any person charged with or convicted of a felony, and pay 
the same and all other necessary expenses not otherwise 
provided by law incurred in so doing, when such person is 
convicted. They may also offer such rewards for the de¬ 
tection or apprehension of any person charged with or en¬ 
gaged in horse-stealing, or aiding or abetting the same, and 
upon conviction of such person, pay such reward, or other 
compensation ; but not to the owner of a stolen horse. 4 

Table op Fees. 

22 For convenience of reference, all fees which consta¬ 
bles, marshals, and similar ministerial officers may receive, 
are tabulated as follows: 


23. Fees in cwil cases: (See par. 1, this chapter.) 

Summons—service and return of, each person named in 

the writ.25 

Subpena—service and return of, for one person.25 

Each additional person named in the writ.10 

Service and return of copies, orders of arrest, warrant, 
attachment, garnishee, writ of replevin, mittimus, 
or commitment, each, for each person named in the 

writ.40 

Execution—service of, on goods or body.40 

Execution—all money made thereon, 4 per cent thereof. 
Service of all other writs and notices not mentioned, 

each.40 

Making copies of all writs, notices, orders, or affidavits 

served, each.25 

Writing and setting up every advertisement (see par. 3). .25 


Publishing any advertisement in newspapers, each, 

actual cost and...12£ 

1 § 3020. 2 § 3021. * § 2487. 4 §§ 2489, 2490. 











246 


CONSTABLES, MARSHALS, ETC. 


Taking bond in replevin and other cases, each.50 

Mileage in conveying lunatic to asylum, each mile, each 

way. 10 

Mileage in all other cases, first mile.20 

Each additional mile.05 

Summoning jury.1.00 

Attendance before justice, or jury trial, each day.1.00 

Attendance before justice in forcible detainer, with¬ 
out jury, each day. 1.00 

Summoning and swearing appraisers in replevin or at¬ 
tachment, each case. 1.00 

Removing and caring for goods, live stock, etc., in exe¬ 
cution, attachment, replevin, etc., such reasonable 
compensation, not to exceed $ 1.00 per day for as¬ 
sistants, as the justice will allow. (See par. 2 .) 

Strays and drifts, advertising and selling (see pars. 11, 

13, 18, Chap. 35.1.00 

Same, in some cases, 4 per cent of proceeds. (Par. 

20 , Chap. 35.1 

Advertising township elections and notifying township 
officers of their election, reasonable compensation, 
to be allowed by township trustees. (Par. 6 .) 

24. Fees in criminal cases : (See par. 1 .) 

Service and return of warrant, or attachment of any 
kind, mittimus, or commitment, each person 

named.40 

Subpena for one person.25 

Each additional person named. 10 

Execution—service of, on goods or body (for fine and 

costs, etc.).40 

Execution —money made on, 4 per cent thereof. 
Advertising property for sale on execution (see pars. 

1-3).25 or .40 

Making copies of all writs, notices, orders, or affidavits 

served, each.25 

Mileage in all cases, first mile....20 

Each additional mile.05 

Service and return of all other writs or notices, each.. .40 
Attending trial before justice of the peace, each day. .1.00 

Attending grand jury, each day.2.00 

Assistants, each, per day.1.50 

For taking charge of defendant or defendants, during 
examination thereof, when required so to do by 

the magistrate (see par. 4). 75 

Pursuing prisoner out of county. (See par. 17.) 
Transporting and sustaining prisoners, allowance made 
by the magistrate, and paid on his certificate. (See 
par. 17.) 






















FEES AND COSTS. 


247 


25. Miscellaneous fees — 

As taker-up of animals unlawfully running at large — 

For taking up each animal of the horse or mule kind.1.00 
for taking up each head of neat cattle (cows, etc.) 

(see par. 6, Chap. 35.).75 

For taking up each swine.50 

For taking up each sheep or goose.25 

For taking up boat, scow, etc., adrift, reasonable compen¬ 
sation allowed by justice of the peace. (See par. 17, 
Chap. 35.) 

For taking up saw logs, ties, lumber, etc., adrift, 4 per 
cent. (See par. 20, Chap. 35.) 

For arresting paroled convict. (See par. 27, Chap. 3.) 

For transporting prisoner to work-house. (See par. 69, 
Chap. 28.) 

For transporting infant to house of refuge. (? 2087.) 
Feeding, watering, etc., certain suffering animals, reason¬ 
able costs, to be collected from owner. (See par. 8, Chap. 34.) 


26. Fees of special constables: 

Generally, same fees as other constables. 

To guard certain private property, reasonable pay, by ■ 
ow.ners of property (§§ 1738, 1739). 

On Lake Erie islands, per day (§ 13428) .. 

Of court constables. (See par. 42, Chap. 1.) 


2.00 






248 


CONSTABLES, MARSHALS, ETC. 


CHAPTER 40. 


MISCELLANEOUS PROVISIONS. 


1. Qualifications of sureties on bonds, etc. Sureties must be 
residents of this state, and worth, in the aggregate, double 
the sum to be secured, beyond the amount of their debts, 
and have property liable to execution in this state equal to 
the sum to be secured. 1 

2. Justification of sureties; effect of. An officer, authorized 
by law to approve a surety, may require such person to 
testify, orally or in writing, touching his sufficiency ; but 
this will not, in itself, exonerate the officer in an action 
for taking insufficient surety. 2 

3. An affidavit in the following form is generally taken 
from each proposed surety, when such testimony is wanted. 
Such affidavits should be attached to the bond, and filed 
with it, among the papers of the case. 

4-7. Form of affidavit of surety (to justify bail )— 

State of Ohio,-county. 

' * | Before C. D., a justice of the peace in and for 

G^H j -township of said county. 

The undersigned 0. M., proposed surety on the indemni¬ 
fying bond [or state what paper, etc., as the facts require ] in the 
above stated case, being duly sworn, says that he is a resi¬ 
dent of the above named county; that he is worth, beyond 
the amount of his debts, at least [here name a sum double the. 
amount to be secured] dollars; and that he has property liable 
to execution in the State of Ohio, amounting in actual value 
at least to the sum of [here insert an amount not less than that 
of the proposed recognizance or undertaking] dollars, beyond the 
amount of all his debts and liabilities. O. M. 

Sworn to and subscribed before me, this-day of-, 

19—• A. B., Constable. 

8 . Bond and undertaking as generally used in tlm 
statutes mean the same thing, the one including the other.- 

9. Facts applicable to indemnifying, re-delivery, replevin , 
and other bonds. Official bonds, and all bonds required or au¬ 
thorized to be taken by or before any public officer, judicial 
or ministerial, and all bonds of indemnity, bind and render 
liable thereon all who sign them, whether, at the time of 


*§ 10219. 


2 § 10218. 


8 §§ 27, 10213. 


MISCELLANEOUS PROVISIONS. 


249 


the signing, the amounts of such bonds be filled in or left 
in blank, if such amounts be filled in before, or at the time 
of the approval or acceptance of such bond, and such fill¬ 
ing in may be done in the absence of any or all of said 
signers, and without any express authority for that purpose 
from them or any of them. 1 

10. As to seals on written instruments, writs, etc. Wherever 
an official or a corporate seal is required to be affixed to any 
instrument of writing, an impression of such seal upon 
either wax, wafer, or other adhesive substance, or upon the 
paper or material on which such instrument is written, is 
sufficient. Private seals are abolished. 2 Therefore, when 
an officer who has a seal, or when a corporation signs an in¬ 
strument, they should use a seal also. But when an indi¬ 
vidual signs a bond, deed, or other paper, a seal is unneces¬ 
sary. As to seals on writs, see paragraph 4, Chapter 3. 

11. Arrest of certain violators of bridge laws. A constable 
of any township, or the marshal of any city or village, may 
arrest upon view, and without any process, any person 
driving on or over any bridge designated below faster than 
a walk, or driving on or over such bridge at any one time a 
greater number of cattle or horses than twenty head. This 
applies only to free county bridges, at each end of wdiich 
the county commissioners have had conspicuously placed 
notices painted in large letters forbidding such riding or 
driving. 3 

12. Arrest of persons intending'to engage in prize-fight. When 
a sheriff, constable, marshal, or other police officer, has 
reason to believe that any person in his bailiwick is about 
to engage as principal or second in any premeditated fight 
or contention, commonly called a prize-fight, or is in trains 
ing or preparation to engage as principal in such fight, he 
must forthwith arrest such person and take him before a 
judge of the court of common pleas, justice of the peace, 
mayor, or police judge, and give notice to the prosecuting 
attorney, who must immediately attend before such officer, 
and, upon the proper affidavit being filed, prosecute the 
complaint. 4 

13. Constables ’ duties as to apprentices, or children “ bound 
out.” There are statutory provisions as to binding out, or 
apprenticing, by parents,” guardians, and certain public in¬ 
stitutions, during minority or otherwise, of certain children 
under their charge. Among these provisions are some re¬ 
lating to the adjustment of disputes between the parties to 
such apprenticeships, or to the punishment of cruel treat¬ 
ment of such children, and which authorize the justice of 
the peace to summon the person to whom any such child 
has been bound, to appear forthwith before him. 5 

x § 5. * § 32. 3 §§ 7572, 7573. 4 § 13474. 5 § 8013. 


CONSTABLES, MARSHALS, ETC. 


250 

14. The form of this summons will be so nearly like that 
given in Chapter 6 that none need be given here. 

15. The service of such summons will be the same as 
directed in Chapter 6. 

16. In such cases, the justice may also issue a venire to 
any constable of the township to summon five disinterested 
freeholders therein, named, to meet at a certain time and 
place mentioned in the venire. 1 

17. The form of such venire will be so nearly like that 
given in paragraphs 2-5 of Chapter 8 that no further form 
need be given here. 

18. The service and return of such venire and constable’s 
duties as to the jury will be the same as directed in said 
Chapter 8. 

18a. Constable’s duties as to dependent or delinquent 
children : 

It is provided that where a minor under eighteen years 
is taken before a justice of the peace, it shall be the duty 
of such justice of the peace to transfer the case to a judge 
of the juvenile court, and the officer having such child in 
charge shall take it before such judge. 2 

19. Constable’s duties as to inquests on dead bodies. The 
coroner may issue any writ required by the chapter of the 
General Code relating to sheriff and coroner, to any con¬ 
stable of the county in which the body of a person whose 
death is supposed to have been caused by violence is found, 
and every constable who fails to execute any warrant to 
him directed, is liable to a fine of twenty-five dollars, to be 
recovered upon the complaint of the coroner, before any 
court having jurisdiction thereof.3 

20. His fee therefor. The law provides that the con¬ 
stable, “for services rendered,” shall be paid his fees; 4 and 
the is as much entitled to these when serving writs for the 
coroner as for the justice or any other officer. 

21. The expenses of coroner’s inquests are paid by the 
county; and the coroner should issue to the constable an 
order or certificate, on the county auditor, for said fees, 
substantially as follows: 

22-25. Form of certificate to county auditor for con¬ 
stable’s fees — 

The State of Ohio, - county, ss. 

To the auditor of said county: 

This is to certify that A. B. is entitled to receive - 

dollars, -cents, for attendance as constable at Coroner’s 

Inquest No. -, held by me as coroner in said county, be¬ 
ginning on - day of -, 19—, in the case of - 

deceased, payable out of the county treasury, as, provided 
by law (§§ 2858, 3347), the items being as follows: 

i §§ 8014, 8015. * § 1659. * § 2858. 


4 § 3347. 









MISCELLANEOUS PROVISIONS. 


251 


Service and return of subpena for 5 persons.$ .65 

5 copies, 25 cents each. 1.25 

Mileage, 7 miles.50 

[Give other items , if any ]. 

Total.$2.40 

Given under my hand, this-day of -, a. d. 19—. 


L. M., Coroner. 

26. .As to revivors of judgments; constable’s or marshal's duties 
as to. The law provides how judgments obtained before 
justices and mayors, having become dormant, may be re¬ 
vived ; also that the conditional order to revive, there pro¬ 
vided for, shall be served and returned in the same time, 
and in the same manner, as in case of service of summons 
in actions before justices of the peace; also that in ail cases 
wherein service may be made by publication, personal 
service may be made either within or without the state. 1 

27. Duties m bastardy cases. When any unmarried woman, 
who has been delivered of or is pregnant with a bastard 
child, makes complaint thereof in writing, under oath, be¬ 
fore any justice of the peace, charging any person with be¬ 
ing the father of such child, the justice must thereupon 
issue his warrant directed to any sheriff or constable of this 
state, commanding him to pursue and arrest such accused 
person in any county in this state, and bring him forthwith 
before said justice to answer such complaint. 2 

23-33. Form of the warrant in such case: 

The State of Ohio, -- county, ss. 

To any sheriff or constable of the State of Ohio, greet¬ 
ing 

Whereas, E. F., an unmarried woman, resident of the 

county of-, has this day made complaint on oath, and 

in writing to and before me, C. D., a justice of the peace in 

and for the township of-, in said county [that on the 

—— day of -, in the year-, she was delivered of a 

bastard child; or, if the fact be so, that she is now pregnant 
of a bastard child], and that G. H. is the father of said 
child. 

You are therefore commanded to pursue and arrest the 
said G. H. in any county in this state, and bring him forth¬ 
with before me to answer said complaint; and for so doing, 
this shall be your warrant. 

Given under my hand this - day of -, A. d. 19—. 

C. D., Justice of the Peace. 

34. The service and return of this writ is the same as in 
case of an order of arrest, in Chapter 25. 

2 § 12110. 


i§ 10444. 










252 


CONSTABLES, MARSHALS, ETC. 


35. As to seizure, etc., of water-craft. The statute pro¬ 
vides that any steamboat or other water-craft [this includes 
canal-boats] navigating the waters within or bordering upon 
this state, shall be liable, and that such liability shall be a 
lien thereon, for all debts contracted on account thereof 
by the master, owner, steward, consignee, or other 
agent, for materials, supplies, or labor in the build¬ 
ing, repairing, furnishing, or equipping of the same, 
or for insurance, or due for wharfage, and also 
for damages arising out of any contract for the 
transportation of goods or persons, or for injuries 
done to persons or property by such craft, or for any dam¬ 
age or injury done by tne captain, mate, or other officer 
tnereof, or by any person under the order or sanction of 
eitner of them, to any person who is a passenger or hand 
on such steamboat or otner water-craft at the time of the 
infliction of sucli damage or injury. 1 

36. Further provision is made for the seizure by the sher¬ 
iff, or by the constable, if the claim is within the jurisdic- 
diction of a justice ot the peace, of such craft on a war¬ 
rant of seizure to be issued to him by the proper court or 
magistrate, and of its release, if a proper undertaking 
therefor be executed; and other matters connected there¬ 
with are also provided for. 2 

37. But it is believed that the cases wherein the con¬ 
stable will be called on to act are so few', especially when it 
is borne in mind that the federal courts have, exclusive 
jurisdiction of most matters of that kind, that a reference 
to the statutes concerning such seizures, is all that it is ex¬ 
pedient to give here. 3 

1 § 12088. See the many important notes to this section, in General 
Code. 

a See, generally, §§ 12089-12092. 

3 See note 2 above. Also Swan’s Treatise, Chap. 71, where full 
instructions and forms may be found. 


INDEX 


(The numbers refer to the pages.) 


Abandoned Property— 

how disposed of. 231 

Abduction— 

of person, out of state. 207 

out of state institution. 207 

Accidents— 

failing to report. 201 

Accomplice in Crime— 

who is an. 183 

Accountant— 

unlawfully practicing as. 205d 

Acknowledgment— 

of service, equivalent to service. 45 

of assignment of lease sold on execution. 99 

Action. See Lawsuit 

or suit at law, defined, etc. 31 

progress of, what is done at, etc.31-34 

Adjournment— 

of criminal trial. 169 

Adulterations of Foods, Drugs, etc.— 

forbidden; penalties, etc.201, 203, 211, 221 

magistrates’ jurisdiction as to. 231 

Adultery.. r . 198 

Affidavit— 

for order of arrest.151, 152, 159 

for arrest in criminal cases.. 167 

for search warrant. 178 

for peace warrant. 181 

of surety, as to his property, debts, etc. 248 

Affray— 

in presence of magistrate. 182 

Agents— 

or societies for prevention of cruelty.219-223 

Agricultural Commission— 

interfering with. 205f 

Aid- 

officer may call. 23, 176 

penalty for refusal to give.23, 176, 192 

Alkali. See Soap. 


253 



























254 


INDEX, 


Animals— 

contagiously diseased; contagious diseases of 

.188, 198, 201, 205d, 205f, 223 


what, not exempt from execution. 70 

liberating unlawfully from pound. 190 

penalties for cruelty to. 194 

riding or driving into railroad inclosure.195-6 

putting carcass of, etc., into stream, canal, etc. 203 

giving poison to. 188 

cruelty to, prevention of.219-223 

care of certain impounded. 220 

magistrates’ jurisdiction as to. 221 

search warrant as to. 222 

domestic, at large.224-8 

strays. 22 $ 

entering any for race, under false representaions. 213 


Apiary— 

violating required inspection of. 205h 

Appoi n tin en t— 

of constables and other officers. 8 

Appraisement— 

of property exempt from execution. 67 

of attached property.108, 109 

of replevied property. 117 , H 8 

Apprentice .249-5$ 


Arrest— 


general provisions as to— 

defined, etc. 130 

may be made for what. 130 

in civil or criminal cases.130-135 

in criminal cases only.136-140 

in civil cases only.140-142 

what constitutes.130-132 

writ protects officer making, when. 132 

reasons for, must be given, when. 134 

what force may be used in making.134, 135, 138, 139 

notice of, must be given.’ 437 

what is a sufficient.*..13*7, 138 

may lawfully be resisted, when..*.*...’ 138 

discharging arrested person by arresting officer*. *. 1 *. .*.’ ] ’ 137 

enticing person into jurisdiction to, not allowed.!!! 141 

avoided, by paying debt, in civil cases. 141 

by showing certificate of insolvency.!!.*!.*.*!. 141 

discharged secured same way.141, 142, 153, 163 

discharge from, generally.141, 142, 146, 153, 163* 170 

in civil cases before judgment— 


for what causes issued... 

affidavit for. 

may issue, when.. * 

requisites of. 

how executed.*.*.*.*.* 

release from. 

arrested person must be taken before magistrate 

unless. 

form of order of. 

of various indorsements on. 

of returns on. 

proceedings after arrest made. 

in civil cases after judgment— 

affidavit for. 

requisites of. etc. 

may be disobeyed, when, etc....!*.*..!!.*!*.!! 

form of. 

of return, etc., on. 

under execution against the person— 

when, how, etc., made. 

discharge from, etc.*.. *. *.! *. * 


. . . 151 

,151, 152 
... 152 

152, 153 

... 153 

... 153 

... 153 

... 154 

... 154 

... 155 

... 155-7 
.157, 158 

... 159 

... 159 

... 160 
160, 161 
.160, 162 

... 162 
... 163 



























































INDEX. 


255 


Arrest—Continued. 

for contempt of court— 

what acts are.164-173 

arrest, trial, sentence, etc.164, 236-9 

warrant. 165 

commitment. 164 

returns, etc., on. 165 

in criminal cases— 

may be made, when, by whom.136, 166 

security for costs. 166 

warrant for.167-8 

discharge from. 170 

under search warrant.178-180 

under peace warrant. 181-182 

Arson . ..*208-214 

Article— 

must be sold by weight or count.205d 

Assessor— 

criminal acts of, or concerning. 185 

Assistance. See Aid 

Attachment of Defendant's Goods— 

defined, etc. 103 

issues, when.33, 103 

trial of right of property seized or sold. 100-102 

is not a suit or action.. r .'. 103 

what justifies or authorizes. 103 

what property may be attached. ... 104 

what property exempt from.'.. .104, 195, 198 

how addressed, served etc. 105, 108 

forms of. 106 

of certificate on. 106 

of indorsement of fees on. 106 

of returns to. 114, 115 

requisites of. 109 

custody of attached goods. 109 

sale of.*.. 110 

where there are several on same goods.110, 111 

discharge of, if bond given. Ill 

of property before debt due. 115 

as to collecting by, outside of state.'.. 198 

Attachment of witness or Juror. See Contempt 

proceedings as to.57, 58, 164, 237 

Awards— 

board of divulging information of. 205f 

Badge— 

unlawful to wear, what.....198, 205d 

Ballots— 

various criminal acts as tol86,200, 201, 203, 205, 206, 210, 211 

• i 

Banks— 

superintendent of... . ... ;. 205a 

Barrel* Box, Bottle, Cask, etc— 

illegal use of branded, etc.184, 194, 200, 201, 202 

Bastardy .. ;Vi 251 

• ' • • t . 

Bees— 

disposing of diseased..... ..^..205 f 










































256 


INDEX 


Beneficiary Association— 

fraudulent.205c 

Beggar.197, 210 

Bids— 

at sale of goods on execution.89-91 

Bill of Particulars— 

what is a, etc. 32 

Billiards. 196 

Blackmail.188, 207, 208 

Blank Space- 

in writ, effect of. 38 

in bond, effect of.248-9 

Bond— 

is same as undertaking. 248 

some general provisions as to. 248-9 

as to seals on. 248 

official, of constable. 249 

of marshal.4, 5, 240 

Of special constable.6,240 

of police, watchman, etc.7, 8 

indemnifying, officer may require...76,101,122 

what may be recovered on. 102 

redelivery, officer should require.80,81,111 

form of. Ill 

in replevin.118, 119, 121 

in order of arrest.152,153,157 

in criminal trial. 170 

for appearance of witness. 237 

qualifications of sureties on. 248 

affidavit etc., of surety on, as to. 248 

Bonds— 

Selling for companies not complying with law. 205f 


Bottle. See Barrel 
Box. See Barrel. 

Brand, Die, Stamp, etc.— 

illegal acts concerning.. 

.!.184, 194, 200, 201, 203, 204, 205f, 212 


Breach of the Peace. See Peace. 

arrest for; what constitutes. 174 , 175 

Breaking Doors. See Doors. 

Bribery. See Elections.203, 205, 210, 213 

Bridge— 

as to notices on.189, 249 

fraudulent use of tickets of. 200 

setting fire to. 208 

arrest for fast driving, etc., over. 249 

Building— 

what, is subject to levy of execution. '...71-73 

as to posting notices, etc., on. 189 

as to escape from public, etc.185, 198 

setting fire to. 208 

fire escapes on. 205 

Building Association— 

criminal acts concerning.204, 213 

Burglar’s Tools. 185 











































INDEX, 


257 


Butter. See Food..201, 202 f 204 

Canada Thistles. 197 

Canals— 

criminal acts concerning.202, 203, 212 

Candy . 201 

Cases. See Civil Cases; Criminal Cases. 

Cask. See Barrel. 

Cattle— 

Diseased .197, 205f 

Cemetery— 

offenses concerning. 199 

Certificate. See Forms. 

officer’s on certified copy of writ. 36 

of deposit unlawfully issuing. 205d 

Chattels. See Execution; Attachment; Exemption. 

what property is.70-73 

what exempt from execution.65-70 

what, subject to execution.70-77 

Chautauqua Assembly— 

fraudulent tickets at.205d 

Check— 

failing to charge certified.205f 

Cheese. See Food.201, 203, 204 

Children. See Minor. 

certain unlawful matters concerning. .195, 196, 204, 205a, 205f 

prevention, etc., of cruelty to.219-223 

various provisions as to.205g, 221, note 

certain employments, etc., of forbidden;..,. .205b, 221, note 

not to be unduly punished, etc.221, note 

penalties against parents and guardians. . 205f, 205g, 221, note 

magistrate’s jurisdiction as to. 221 

duties of various officers as to.222, 223 

apprenticed, provisions as to.249-50 

dependent and delinquent.250 

Civil Cases— 

defined, etc.31, 32 

various kinds of. 32 

proceeds how. 32 

magistrate’s jurisdiction in. 9-17 

Clerk of Township. See Election. 

duty of, as to strays, drifts, etc.226-230 

Clerks of Police Court and Deputies. 16 

Classification— 

of officers, and of their duties, etc. 17 

Cocaine 

unlawful sale of. 205f 

Cock-fighting . 222 

Cohabitation— 

what, is unlawful.*. 199 


































258 


INDEX. 


Commitment. See Mittimus. 

writ of, defined, etc. 34 

of person accused of criminal offense.169,171-173 

of person for contempt of court, etc. 165 

returns on. 239 

Compensation. See Fees. 

Complaint. See Affidavit. 

for issuing* warrant on.167, 178, 181 

Concealing Criminal. 210 

Conduct— 

of sale on execution. 89-93 

immoral and indecent, forbidden.199, 200 

Conservators of the Peace— 

what officers are.11, 12, 19, 176 

Constable—Constables— 

how many of, in a township. 1 

election, term ot office, etc., of. 1, 8 

who may be; penalty for not serving*. 1, 2 

need not serve two years in succession. 3 

official bond of. See Bond. 2, 3 

special, and court, appointment, etc., of. 6, 7, 27 

in cities and villages, appointment of. 8 

magistrate’s jurisdiction affects, how. 9 

general powers, duties, etc., of.17-26 

is ministerial officer, where.18,19 

must obey what officers.18, 19 

pursue fugitives... 19 

arrest escaped convicts.21, 22 

pay over money collected, etc. 23 

serve what writs. See writs, below.19-32,35-41 

be present at trial.54,56 

fees of. See Fees. 

authority of, extends where.19, 20 

is designated as A. B. herein. 32 

are preservers of the peace.19,174 

may call what aid.23,176 

penalty for refusing to aid.23,192 

entitled to what laws. 25 

misconduct of. See Officers.216-218 

stirring up law suits. 26 

refusing to serve writ.184,185 

penalties against.23, 78, 80, 95, 109, 184, 185 

sale of property of, for. 24 

release of sureties of.240, 248 

duties, etc., of, as to sale of liquors at fairs.21, 24 

trial of cases.54, 56 

cruelty to children and animals.219-23,249-50 

animals unlawfully at large.224-228 

estrayed . 228 

boat or other watercraft adrift.228-230 

timber, lumber, etc., adrift.228-231 

depositions, taking of.235-9 

election of township officers.232-4 

at elections generally. 234 

coroner’s inquests. 250 

in bastardy cases.251 

as to abandoned* or stolen property.231 

writs; duties, of, rights, etc*., as to. See Writs... 19-22, 35-41 

summons .42-48 

subpoena .49-52 

summons for jury.53-55 

attachment for witness or juror.56-59 

of defendant’s property.103-115 

























































index. 259 

Constable—Constables—Continued. 

execution, issuance, and kinds of.60-65 

property exempt from.65-70 

property subject to.70-77 

levy of, etc.75, 78-85 

liabilities and remedies of, as to.78-80, 95 

sale of goods under.89-93 

re-delivery bond . 80 

leaving seized goods with debtor.78-80 

return of .94-99 

replevin .116-124 

restitution of real estate.155-159 

arrests, generally. See Arrests; Warrants. 

under search warrants.178-180 

under peace warrant .181-2 

Contempts of Court— 

as to punishment of, etc. 58 

what acts are. 164 

proceedings as to.164, 165 

Contracts— 

officers or agents interested in. 205b 

Convicts— 

what officer must arrest escaped.21, 22 

Copy— 

of writ, who makes, how served, etc.36, 37, 153 

Coroner— 

constable must serve writ of.20, 250 

Corporation— 

how summons served on. 44,45 

officer of refusing to comply with law. 205d 

Corpse. See Dead Body. 

Costs— 

execution for.60, 62 

security for, in criminal cases. 166 

Council— 

appointment of police, watchmen, constables, by. 8 

Counterfeiting.206, 212 

County— 

magistrates' jurisdiction throughout. 9-11 

constables’ jurisdiction throughout.19-26 

marshals’ jurisdiction throughout.26-28 

Crimes and Offenses— 

a list of acts which are.183-215 

Criminal Case— 

defined, etc. 31 

justices’ jurisdiction in. 11 

mayors’ jurisdiction in.12, 16, 17 

police justices’ jurisdiction in.13, 14, 17 

police judges’ jurisdiction in.14, 15 

police court clerk’s jurisdiction in. 16 

how begun; progress of, etc.34, 166-182 

Crockery— 

adulteration of materials for. 205d 

Crops— 

when subject to levy of execution, etc.71-73 

injuring, etc., is criminal.•••189, 209 










































260 


INDEX, 


Cruelty— 

societies for the prevention of.219-223 

to children; penalties, etc.219-223 

to animals; penalties, etc.219-223 

officers' duties as to.220,222 

Damages. See Liability. 

when officer liable for.149. 217-18 

Dead Body— 

as to search for. 179 

unlawfully unburied, experiments on. 199 

receiving, at medical college.186, 199 

unlawful use of. 199 

unlawful unburying, etc. 210 

Decoration Day— 

playing public games on. 205a 

Defendant. See Summons; Arrest; Warrant. 

defined, etc . 31 

death of, affects levy, how. 77 

Definition— 

of action or law suit.31, 32 

animal . 219 

apprentices . 249 

arrest . 130 

attachment . 103 

bond . 248 

breach of the peace. 175 

certified copy . 36 

civil law, criminal law, etc. 31 

chattels .71, 72 

contempt of court. 164 

copy . 35 

cruelty . 219 

execution . 59 

felony .135,183 

law, civil, criminal, etc. 31 

law suit or action.31, 32 

levy . 78 

misdemeanor .135, 183 

officers, various kinds of. 18 

owner . 219 

property; real, personal, tangible, intangible, etc.71-2, 104-5 

return . 35 

riot . 176 

subpoena . 49 

summons . 42 

torment . 219 

torture . 219 

undertaking . 248 

writ . 35 

Dentist— 

practicing without diploma or certificate. 196 

Depositions— 

officers' powers, duties, etc., as to.235-9 

Deputy— 

powers of. 16 

Device— 

resorting to unlawful. 205d 

Discharge. See Attachment; Arrest. 

unlawful, of firearms, cannon, powder, etc.195, 198 

















































INDEX 


261 


Dividend— 

making false. 213 

declaring greater than earned. 205d 

Divorce . 197 

Dogs .194,222,224 

Doors— 

breaking, to make levy.77, 147, 149 

to replevy goods. 117 

generally . 147 

to execute search warrant.148,179 

Drinking— 

intoxicants in train. 205d 

Drugs— 

adulteration of. 205a 

various forbidden matters as to.198, 203, 207 

conveying into prison against rules. 190 

Dwelling. See Execution. 

as to breaking into, to make levy, etc.77, 117 

to make arrest . 136 

Dynamite .202, 212 

Education— 

compulsory .30, 205b 

Effect— 

of leaving goods with judgment debtor;..;.78-80 

Election— 

of constables. 1 

notice of township, how given, etc. 226 

constable’s duties as to.226,223-4 

acts concerning, which are crimes. .186, 199, 200, 201, 203, 205, 

.205b, 205f, 206, 210, 211, 213 

day offenses relating to.2u5c 

Embezzlement.208^ 209 1 , 214 

Entries— 

making false in book. 205d 

Escape^- 

from arrest .138, 139, 142, 217 

work-house, pest-house, etc.185, 188 

aiding or permitting, is criminal.190,191,210,217 

Examination— 

of person arrested on criminal charge. 169 

Execution. See Writ. 

defined. 59 

person may be deputed to serve.38, 39 

issuance of, generally. 59 

different kinds of.60, 162 

requisites of, etc.59 

for costs. 60 

forms of .60-63 

of items of fees on.63, 64 

of returns of .94-99 

property exempt from .65-70 

subject to .70-77 

levy of, what constitutes, etc.78-80 

excessive, effect of.81, 82 

insufficient, effect of .81, 82 

satisfies the debt, when. 83 

in what order levied. 82,84 

















































262 


INDEX. 


Execution—Continued. 

order of preference of. 84 

officer’s liabilities as to.78-80, 85-88 

searching for goods to levy on. 85 

effect of insufficient .85,86 

pay for keeping live stock, etc., levied on. 86 

sale of property seized on.89-93 

returns to .94-99 

trial of right of property seized, etc., under.100-102 

against the person. 102 

form of . 02 

Exemptions— 

from levy and execution.65-70 

when none allowed.69,70 

Extortion— 

by officer . 216 

Factory— 

alterations and additions, penalty for not making. 185 

False Pretenses— 

obtaining thing of value by. 215 

Farm Products— 

regulating sale of.205g, 205a 

Farmers— 

special property of, exempt from execution, etc. 66 

Feedstuff— 

selling in violation of law. 205f 

Fees— 

as to, generally.‘.223, 241 

of township clerk as to constable’s bond. 4 

of special constables. 6, 7 

of constables, marshals, etc.22, 241-7 

of person deputed to serve process. 39 

items of, must be stated on writ. 41 

or will not be paid. 41 

some examples of how done.61, 63, 64, 106, 124 

witness may demand, when subpoenaed. 50 

for transporting prisoner to work-house. 173 

charging or receiving excessive.191, 192, 205b, 216 

in civil cases, and generally.241-3 

in criminal cases, how collected, etc.243-4 

as to stray animals.226, 227 

as to drifts .229, 230 

table of ...245-7 

Felony— 

defined, etc.135, 183 

magistrate’s jurisdiction in cases of.11-15 

list of acts which are each a.206-215 

arrests of person guilty of.135, 136, 130-139 

compounding. 190 

Female Employes.201, 205c, 205g 

Female Visitors— 

preventing from entering establishment.205c 

Fences and Fence Material— 

when subject to execution, etc.71-73 

opening fence, is a misdemeanor, when.189, 194 

Fertilizers ...187, 197, 205f 














































INDEX 


263 


Firearms— 

using, in making arrests, etc. 139 

use of, forbidden where.195, 200, 188 

Fire Escape .203, 205 

neglecting to instruct as to danger of.205d 

Fish— 

certain unlawful acts as to.201, 205, 205g 

Fixtures— 

what are; as to levy on, etc.71-73 

Food— 

various illegal acts, etc., as to. . . . 201, 202, 203, 204, 205d, 207 

Force- 

how* much, may be used an making arrest. 134, 135, 138, 139, 140 

in case of riots. 176 

using, toward officer, juror, etc., penalty. 216 

Forcible Entry and Detainer— 

defined, etc. 125 

who may try action of. 9, 11 

how begun; progress of, etc.33, 34, 125 

Forcibly Entering Dwellings— 

generally .147-150 

to make levy. 77 

to replevy property. 117 

to execute search-warrant. 179 

Forgery .200, 201, 205d, 205g, 211, 215 

Form—Forms— 

of constable’s bond and oath. 3 

marshal’s bond and oath. 5 

noting time of receiving writ. 36 

certificate on copy of writ.37, 43 

summons .1. 42 

indorsement on summons. 42 

returns on summons.46-48 

subpoenas .50, 51 

returns, etc., on.51,52 

summons for jury. 53 

return, etc., on. 53 

in replevin ..116, 117 

in forcible detainer. 126 

attachment for witness or juror.57, 236 

return, etc.,, on.57,58,237 

execution . i .60-63 

indorsements on . 63,64 

return of .90-95 

indemnifying bond .76, 101, 122 

redelivery bond . 81 

affidavit of officer sued for seizing wrong property. 87 

Of notice of sale of goods on execution. 89 

inventory of goods sold on execution. 92 

of unsold goods. 92 

inventory and appraisement in attachment. 109 

in replevin .117, 118 

returns to execution. ; .95-98 

assignment of leasehold sold on execution... 98 

acknowledgment to . 99 

oath of appraisers in attachment.108, 109 

order to sell attached property.110, 113 

return of . 110 

order to return attached property to defendant.... 112 

to re-seize attached property. 113 

writ of replevin and summons. 116 

certificate on . 117 

on inventory . 118 





















































264 


INDEX. 


Form—Forms-—Continued. 

order to keep, etc., replevied articles. 120 

affidavit for order of arrest before judgment. 152 

order of arrest.154,160 

certificate, etc., on.155,161 

returns on . 155-157, 161, 162 

warrant, for contempt of court.. ...164, 238 

commitment, for same.165, 238 

of person accused of crime.169, 171, 172 

return, etc., on.169-173 

order on jailer for prisoner. 170 

search-warrant . 179 

return, etc., on. 180 

peace warrant. 181 

mittimus to keep the peace. 182 

notice of election.232, 233 

list of officers elected. 233 

certificate, return, etc., on. 233,234 

bond of witness to appear and testify. 237 

affidavit of surety, as to his property, debts, etc.... 248 

coroner’s certificate as to constable's fees. 244 

Fractions of Days. See Time. 

not counted, in computing time of trial, etc. 43 

Fraternities— 

in school forbidden. 205b 

Fraud. See Crimes and Offenses. 

certain acts which are.200, 205d, 205g, 211 

by officer .216, 217 

Fugitive. See Escape. 

from certain state institutions, arrest of. 21 , 22 

Gambling— 

provisions against .192, 193, 198 

Game— 

as to unlawful killing, selling, etc., of. 205 

Garnishee. See Attachment. 

defined, etc . 105 

proceedings against .* * 106 

form of notice to. !.!!.!!*. 107 

how served . 107 

Gas-pipes .203, 204 

Gate— 

opening, is criminal offense, when. 188 

Girl- 

influencing to leave industrial home. 205g 

Grave-stone— 

injuring . 199 

Grounds— 

for order of arrest before judgment. 151 

Guide-board— 

injuring, on public road. 189 

Gunpowder— 

exploding in street. 197 

Habeas Corpus— 

release from arrest by. 14 g 


Hazing 


205 









































INDEX. 


205 


Head of Family— 

may hold what property exempt from execution.65-70 

Health and Safety— 

violating laws relating to.205d 

Heirlooms, Keepsakes, Relies, etc.— 

as to replevy of.120, 121 

Hogs. See Animals. 

Homestead— 

property in lieu of, exempt from execution.68-70 

Horse. See Animals. 

Husband. See Head of Family. 

Immoral Conduct— 

various kinds of, forbidden.199, 200, 205c, 210 

Immoral Literature— 

dissemination of . 205c 

Indecent Conduct— 

as to various kinds of.198, 200, 210 

Indemnifying Bond— 

when officer may require.76, 101, 122 

form of .76, 101, 122 

Imprisonment— 

when part of sentence, effect of. 17 

Initiative and Referendum— 

violating laws as to petitions. 205g 

Inquests— 

constable’s duties as to. 250 

Insecticides, etc.— 

selling in violation of law. 205g 

Insurance Company. See Corporations. 

various illegal acts concerning. .184, 200, 205a, 205b, 205d, 211 

Interurban Car— 

operating without closets, etc. 205g 

Intoxicating Liquors— 

certain officers’ duties as to. 21 

acts, etc., concerning, which are criminal, 

187, 190, 193, 194, 199, 200, 202, 204, 205, 205d, 205e, 211 

Inventory— 

of goods sold on execution. 92 

penalty for not making. 92 

of attached property.108,109 

of replevied property.117, 118 

Items— 

of fees of constable, marshal, etc., must be on writ.... 41 
or fees can not be allowed. 41 

Judgment— 

revivor of; officer’s duties as to. 251 


























266 


INDEX. 


J urisdiction— 

of justice of the peace. 

mayor . 

police judge . 

municipal court . 

clerk of police court, and deputies 
affects constable, marshal, etc., how.... 
effect of, as to protecting officer serving 


.9-11, 221, 235 

11-14, 16, 17, 221, 235 

..14-17, 221 

14 

. 16 

. 9 

writ. 39 


Jurors— 

attendance of, compelled, how, etc.17, 57, 58, 221 

acts, etc., of, or concerning, or by, which are crimes, 

187, 192, 202, 204, 205a, 216 


Jury— 

trial by, in criminal cases before magistrates.11-17 

summoning, etc., of.*.53-55 

duties, etc., of at trial. 54,55 

commissioner, accepting gifts, etc. 187 

Justice of the Peace— 

may appoint special constables. 6 

effect of such appointment, etc. 6, 7 

jurisdiction of ..9-11, 221, 235 

is designated as C. D. herein. 32 

as to writs issued by.35-41 

differ from mayor’s, etc., how. 40 

must allow pay for keeping live stock levied on . 86 

Keepsakes, etc.— 

as to replevin of..120, 121 

[Labor— 

violating 8-hour per day on public work.205c, 205f 

what, forbidden on Sunday.*. 199 

[Labor Union Trademark— 

fraudulent filing of. 205d 


[Land— 

selling, having no title to 


211 


[Landlord— 

rights of, as to levy of execution, etc 

[Larceny— 

of book, papers or documents. 

[Law— 

defined, etc.. 

[Law-suits— 

penalty for stirring up. 

defined, etc . 

incidents and progress of. 

Laws. See Law. 

constable entitled to certain. 

must deliver to successor. 

[Levy. See Execution; Attachment. 

second, on property. 

on what property may be made. 

on what not . 

effect of, on wrong goods. 

what constitutes a . 

requisites of a valid. 

insufficient, effect of, etc. 

excessive, effect of, etc. 

satisfies debt, when . 

in what order made, if more than one 


73 


205g 


31 


26 

31 

31-34 


25 
25, 26 


.75, 76 

.70-77 

65-70, 71-77 

. 74 

.78-84 

.78-84 

.81, 82 

.81, 82 

. S3 

. 83 












































INDEX, 


267 


Levy—Continued. 

as to goods taken from officer. S3 

officer’s liabilities and remedies as to.78-80, 85-88 

search for goods on which to make.85, 86 

what will excuse officer not making. 86 

pay for keeping live stock, etc., levied on. 86 

as to on wrong property.86, 87 

Liability of Officer. See Damages; Officer. 

as to executions .78-80, 94, 95 

as to attached goods . 109 

Libel . 188 

License— 

% 

violating law requiring.203, 205d, 205g 

Liens— 

as to levy of execution on property subject to. 74 

Live Stock— 

pay for keeping, levied on. 86 

Lobbying— 

law regulating . 205f • 

Local Option— 

refusing to sign petition for.205b 


Lottery, etc . 192 

Lunch— 

sale of not to include drink of liquor.205d 


Magistrates. See Mayor; Justice; Police Judge. 


Married Woman— 

may hold what property exempt from execution, etc... 66 


Marshal. See Officer. 


1 

4 

4, 5 
9 

26 


who may be. 

election and appointment of. 

oath and bond of. 

affected how, by magistrate's jurisdiction. 

is ministerial officer where. 

duties of, generally ..26,27 

jurisdiction of .26, 27 

deputy marshals, powers, etc., of. 26 

must pursue fugitives . 19 

arrest escaped convicts . 22 

pay over money collected, etc. 23 

serve what writs. See Writs, below.19-32, 35-41 

be present at trial. 56 

fees of. See Fees. 

is designated as A. B. herein...... 32 

is preserver of the peace.27, 174 

may call what aid.23,176 

penalty for refusing to aid.23, 192 

misconduct of. See Officers.216-218 

stirring up law-suits. 26 

refusing to serve writ. 184, 185 

penalties against .23, 78-80, 95, 109, 184, 185 

sale of property of, for. 24 

release of sureties of.240, 248 

duties, etc., of, as to trial of cases.54,56 

cruelty to children and animals.219-23,249-50 

animals unlawfully at large. 224 o 22 q 

depositions, taking of. 2 *5-9 

at elections, generally. 2 ” 4 

as to abandoned or stolen property.231 















































268 


INDEX. 


Marshal—Continued. 

writs; duties, rights of, etc., as to. See Writs.. .19-22, 35-41 

summons .42-48 

subpoena .49-52 

summons for jury.53-55 

attachment for witness or juror.56-59 

of defendant’s property.103-115 

execution, issuance, and kinds of.60-65 

property exempt from.65-70 

property subject to .70-77 

levy of, etc.75, 78-85 

liabilities and remedies of, as to.78-80, 95 

sale of goods under.89-93 

redelivery bond . 80 

leaving seized goods with debtor.78-80 

return of .94-99 

replevin .116-124 

restitution of real estate.125-129 

arrests, generally. See Arrests; Warrant. 

under search warrants.178-180 

under peace warrant .181-2 

Mayor— 

duties of, as to marshal’s bond. 4 

police, etc., appointed bv. 7 

powers, etc., of, over police, watchmen, etc.16-17 

must sign and seal all writs, etc.18,40 

is designated as C. D. herein. 32 

writs, duties of, as to.35-41 

differ from justice’s, how. 40 

Mechanic’s Lien— 

what does not impair. 68 

Medicines. See Drugs. 

practice of without certificate.205g 

acts, etc., concerning, which are crimes.187, 205a 

Merit System— 

not complying with. 205a 

Midwifery— 

practice of without certificate. 205g 

Military Expedition .175, 209 

Military Officer- 

who must serve writs of. 20 

Milk. See Food. 202,203 

Mine- 

acts concerning, which are crimes.184, 190, 205d 

Ministerial Officer. See Constable; Marshal; Policeman, etc. 

defined . 18 

constable is ..*.*!!. !l8, 19 

marshal is .. . . ! . !!!!!..!.!!.!! 18, 26 

policemen are . IS 

Minor. See Children. 

service c r r’^^ons on. 45 

sale of liquor to, etc..*...*....’..*202,203, 204 

employing during school session.205b 

Misconduct of Officer. See Officer. 

Misdemeanor- 

defined .135, 183 

a list of acts which are each \\\\\\\ .183-205 

what officers may try cases of.11-17 

procedure in such cases.11-17 

as to arrest, etc., of person guilty of.135-139 
















































INDEX, 


269 


Mittimus. See Commitment. 

writ of. defined, etc. 34 

of prisoner, to jail, etc. 169 

Money— 

certificate that there is in the treasury. 4 

for sale of attached property. 110 

receiving* when bank insolvent. 205d 

Mortgage— 

waiver of exemption from execution by. 68 

removing property subject to.i. 188 

Motor Vehicle— 

operating contrary to law. 205g 

Municipal Courts . 14 

Murder— 

killings which are. 206 

Name— 

how to proceed, if unknown.43, 133 

correct, must be used in warrant. 133 

as to middle, surname, etc...133,134 

Negligence. See Damages. 

when officer liable for. 217 

Newspaper— 

violating law as to publishing. 205g 

Nine-pins . 197 

Notary Public— 

who must serve writs issued by.20, 235 

penalties against . 191 

Notice— 

of election to office, etc.2, 232-235 

of sale of goods on execution. 89 

of trial of right of property seized or sold. 100 

to garnishee . 107 

to tenant, etc., to leave premises. 125 

of arrest, must be given. 137 

injuring, etc., certain, is criminal. 190 

as to posting certain. 190 

constable must give, as to election.232-235 

of sale of stray animal, drift, etc.227, 229, 230 

Nuisances— 

certain, which constable may abate. 24 

other provisions as to. 192 

Nursery Stock— 

failure to destroy when ordered. 205h 

Oath. See Affidavit. 

includes affirmation .2, note 

affirmation in place of.2, note 

of office of constable. 2 

of marshal . 4, 5 

of special constable. 6 

who may administer. 9 

Obscene Conduct— 

as to various kinds of. 198 

Occupational Disease— 

violating act as to. 205h 









































270 


INDEX, 


Officer—Officers. See Constable, Marshal, etc. 

various kinds of, defined. 1" 

their respective powers, duties etc.17-28 

misconduct of, penalties as to.184-187, 

191, 195, 202, 204, 205a, 205b, 205h, 210, 214, 216-218 

of others, toward officer.185, 216 

impersonating an . 191 

Ohio Humane Society— 

powers, etc., of.219-223 

Oils, Oil Wells, etc. See Food. 

acts concerning, which are crimes.184, 194, 202, 204, 205, 205g 

Oleomargarine .202, 205a 

Opium . 198 

Oppression— 

by officer . 217 

Orchards— 

violating law as to spraying. 205h 

Order. See Attachment. 

of attachment .104, 106 

when more than one, what to do.110, 111 

of sale of attached property.110,113 

to return attached property to defendant. 112 

to re-seize attached property.112, 113 

of arrest before judgment.152-154 

on jailer, for prisoner. 169 

signing name to without authority. 205d 

Ordinance— 

as to trial for violations of.11-17 

violations of, are misdemeanors. 135 

Osteopathy— 

practice of in violation of law. 205h 

Pandering— 

defined and penalty. 205c 

Pawnbroker .187, 196 

Payroll— 

misrepresenting amount of. 205d 

Peace— 

what officers are preservers of the.11, 12, 19, 26, 174 

as to breaches of the. 174 

arrest for, without warrant. 174 

what constitutes a breach of. 175 

Pedigree— 

as to false. 199 

Penalty. See Crimes. 

for refusing to serve as constable. 2 

not delivering to successor certain laws.. * 26 

refusing to aid officer, when called.23,176 

against riotous conspirators (“white caps," etc.). *176 

Penitentiary— 

prisoners to be credited with 40 cents per day. 205c 

Yeriury .205h, 209 

before registrar.205d, 205g 





































INDEX. 


271 


Physicians— 

special property of, exempt from execution, etc. 66 

making unlawful prescription... 205d 

Plaintiff- 

defined, etc . 31 

Poison- 


certain criminal acts concerning. 188, 194, 195, 204, 206, 207, 211 


Police Judge— 

jurisdiction of .13,14,15,17 

Policeman— 

who may be . 1 

oath of office of, etc. 2 

appointment, etc., of . 7 

powers, duties, etc., of, generally.28, 175-176 


writs, duties, etc., of, as to (see Writs). 
Pools. See Gambling, 


Possession— 

of goods levied on..78-82 

of goods attached .109, 118 

Pound— 

injuring, etc., is criminal. 190 

Prevention— 

of cruelty to children and animals.219, 223 

Prisoner. See Warrant; Arrest. 

commitment of, to jail, work-house, etc...169,173 

sustenance of . 169 

soliciting money from. 205h 

Privilege— 

from arrest, generally .143-146 

must be claimed, or not granted. 146 

arresting officer can not, generally, grant it. 146 

when he can . 146 

Prize Fights, etc.— 

regulations as to .175, 190, 209, 249 

Probation Officer ... 28 

Process. See Writ. 

defined, etc.... 35 

what and where constable must serve.19-26, 35-41 

marshal .26-28, 35-41 

justice may depute person to serve. 38 

Proclamation— 

of officer, to rioters to disperse. 176 

Property. See Execution; Attachment; Exemption. 

classified into real and personal, etc.71-73 

tangible and intangible explained.104, 105, 105f 

what, exempt from execution.65-70 

subject to . ...70-77 

levy on, what is a valid. 78-80 

excessive or insufficient, effect of..81-83 

levied on, taken from officer.••. 83,86 

in what order levies made on. ...83,84 

lien of levy on.*... * 84 

search for, by officer, to levy on.... .^. .85.86 

trial of right of, seized or sold by officer.100-102, li3 

sale of, on execution. 89-93 

attachment of, generally. .103-115 

when attached, must be sold.... • 110 















































272 


INDEX 


Property—Continued. 

discharged . Ill 

as to, if lost . Ill 

returned to defendant.Ill, 112 

replevied, disposition of.120-122 

as to, in hands of third person, in case of executions... 76 

attachments .105-108 

replevin .121, 122, 123 

conditionally sold . 76,202 

destroying, etc., criminally.208, 209 

abandoned or stolen, how disposed of. 231 

Prosecutions— 

as to birds, fish and game. 17 

Protection— 

when writ is, to officer serving it.39, 132, 133, 146 

Publishing— 

fraudulent prospectus . 205d 

Qualifications— 

of sureties on bonds. 248 

Railroad. See Corporation. 

certain property of, exempt from execution, etc. 67 

acts concerning, which are crimes, 

183, 184, 186, 195, 196, 200, 204, 209, 214, 215 
Rape . 207 

Recognizance— 

of person accused of criminal offense. 169 

Realty—Real Estate— 

defined .71-73 

as to levy of execution on. 71 

consists of what...71-73 

Recapture— 

after escape from arrest. 142 

Redelivery Bond— 

officer should require, when...80, 81, 111 

Registrar— 

neglect of duty as. 205a 

Registry— 

as to false, of stock, etc. 198 

as to elections...205d, 205c 

Remedy— 

of officer sued for seizing, etc., of wrong property.... 86, 87 

Replevin— 

what officers may try action of. 9-11 

how begun, progress of, etc.33, 116-124 

what property can be replevied. 116 

summons and writ of. 116 

return of .123-124 

as to breaking doors, etc., to serve writ of. 117 

inventory and appraisement in.117-118 

bonds or undertakings in.118, 119, 121 

to whom property to be delivered.119-123 

as to heirlooms, keepsakes, relics, etc. 120 

of property in third person's hands.... 121-123 

Requisites— 

of writ of execution. 59-60 

Rescuing Prisoner .191, 217 








































INDEX. 


273 


Resisting: Officer. See Force. 

effect of .*.185, 191, 216 

Restitution— 

of premises unlawfully detained. 127 

Return (Officer’s Report) — 

defined, etc ......35-36 

must be made on writ...22, 35,36 

when .22,36 

amending* . 37 

“not found” may be made, when. 37 

return day, what is... 38 

how courts construe. 37 

of constable and marshal, differ, how. 40 

items of fees, no part of. 41 

nor note of time of receiving writ.. 36 

of summons, forms of.46, 47 

of subpoena, forms of.51-52 

of execution .94-90 

of attachment .114, 115 

of order of sale.1.. 110, 115 

of replevin .123,124 

of restitution .128, 129 

on order of arrest.155-157, 161, 162 

on warrant in criminal case. 169 

on order on jailer for prisoner. 170 

on commitment to jail or workhouse...170,173 

Reward— 

for arrest of criminal. 245 

Right of Property— 

trial of, seized or sold by officer.100-102 

Riots— 

defined . 176 

as to suppression of.19, 176 

Road— 

obstructing travel on. 186 

Superintendent of refusing to perform duty.205d 

Robbery . 207 

Rule of Diligence— 

as to making levy on goods.85, 86 

Safety Appliances— 

violation of law as to by railroad. 205h 

Sale— 

of goods seized on execution.89-93 

notice of . 89 

time and place of . 89 

conduct of .89-92 

inventory of.92 

order of, defined, etc.97, note; 93 

of goods attached.110-115 

illegal, of merchandise, etc.184, 194, 201, 202 

of stray animals. 226 

of boat, timber, lumber, etc., adrift.229, 230 

Saloonkeeper— 

offenses relating to sales of liquor. 205d 

Schedule— 

of goods not sold on execution. 92 

penalty for not making. 92 















































274 


INDEX, 


Schools— 

offenses in relation to...205,205b 

Script— 

payment in prohibited.205a 

Seal- 

justice has no . 18 

mayor has a. 18 

and must use it on all writs, etc.18, 40 

general provisions as to. 249 

Search Warrant— 

proceedings as to, and under..178-180, 205c, 222 

Securities— 

violating law regulating sale of. 205h 

Security— 

for costs in criminal cases. 166 

Selection— 

of property exempt from execution. 68 

Self-defense- 

officer may protect himself in. 139 

Service. See Writ. 

Sexual Relations— 

various unlawful matters as to.199, 210 

Sheep. See Animals. 

Shooting— 

at fleeing criminal...139,140 

Sidewalk- 

obstructing . 190 

Skunks— 

killing out of season...205c 

Soap, Alkali, etc.— 

putting into boiler, well, etc. 209 

Society— 

for prevention of cruelty; powers, etc., of.219-23 

Special Constable— 

appointment, oath, bond, etc., of.6,7 

powers, duties, etc., of. 27,28 

Stallion.203, 204, 227 

Stamp. See Brand. 

Steam Boiler— 

violating law requiring examination of.205h 

Stenographer's Notes— 

illegal use of. 205c 

Stolen Property— 

disposition of.205d, 231 

Strays. See Animals. 

various provisions as to.226 


























INDEX 


275 


f 




Subpoena. See Writ. 

defined . 49 

who may issue .».9, 11,20,49,235 

how obedience of, enforced.9, 11, 17, 236-9 

issues when .32, 49, 235 

time of receiving need not be noted. 49 

who may serve.49, 235-6 

how served .49, 235-6 

as to witness fees demanded.49-50 

to whom directed. 50 

duces tecum. 50 

forms of.50, 51 

of returns on.51, 52 

items of fees on... 51 

Summons. See Writ. 

defined, etc..... 42 

issues when, etc. 32, 1 3 

person may be deputed to serve. 38, 39 

is generally first writ in civil case. 42 

form of. 42 

must be served when. 43 

time received, must be note on.36, 43 

how served on individuals, generally. 43 

on corporations.44, 45 

on minors.45, 46 

on arbitrators or referees. 46 

on jurors.53, 64 

return of. See Return. * 

forms of returns on.....46-48,53 

Summons— 

for jurors, generally.53, 54 

in replevin.116, 117 

in forcible detainer. 126 

Sunday— 

various things forbidden on.198, 199, 204 

Surety— 

of constable, marshal, etc. 3 

qualifications of.2, 248 

affidavit of, as to. 248 

release of.*. 24QI 

Surgery— 

practice of without certificate.205d 

Sustenance— 

of prisoner. 169 

Swearing— 

profane, is criminal offense. 198 

Switch Engine— 

crew of.205f 205h 

Table of Fees.239-247 

Talesmen.. .See Juror. 

filling panel with; duties of. 54 

Telegraph— 

criminal acts concerning.186, 204 

Telephonic Communications— 

divulging .205a 

Tenant— 

rights of, as to levy of execution, etc.71-73 














































276 


INDEX 


Term of Office— 

of constable, marshal, etc. 1-8 

Third Person. See Execution; Replevin; Attachment. 

property in hands, of, in case of execution. 76 

attachment.105-108 

replevin.121, 122, 123 

Timber— 

criminal provisions as to.189, 190, 204, 205c, 214 

Timber Dealer— 

trade mark unauthorized use of.205c 

Time— 

of receiving writ; must be noted thereon.22,36 

to serve writ, how computed. 38 

as to fractions of days. 43 

Title— 

fraudulently obtaining certificate of.205f 

Toll- 

taking illegal, on pike or at mill.187, 200 

Township- 

how many constables in each. 1 

jurisdiction of justice in.9-11 

of constable in. 19-26 

Township Clerk— 

duties of, as to election, etc., of constables, etc.2, 3 

as to strays and drifts, etc.226-230 

Township Trustees— 

duties etc., of, as to constables, etc.1, 2, 3 

as to strays, etc.226-30 

Trades— 

conspiracy against. 205f 

Trading Stamps— 

violating law regulating sale of. 205e 

Tramp . 210 

Truant Officers. 30 

Transcript— 

sent to work-house with prisoner. 172 

Tree— 

destroying, is a crime, when.189, 209 

Trespass— 

jurisdiction as to. 10, 11 

is criminal, when. .189, 198, 201, 202, 203, 205, 205d, 205h, 214 

Trial- 

ministerial officer’s duties etc., at.54, 56 

of right of property levied on or attached.100-102, 113 

of person accused of criminal offense.. . 170 

Trustees of Township. See Township Trustees. 

Toy Pistols and Firearms— 

sale of to minors. 205d 

Undertaking. See Bond. 

Vacancy— 

in office of constable, how filled, etc... 2 
































INDEX* 


277 


Venditioni Exponas— 

explained, etc.97, note, 93 

Vinegar— 

adulteration of. 201 

Votes—. See Election. 

various criminal acts as to...186, 200, 201, 205d, 205e, 210, 211 

Wages— 

as to paying with scrip, goods, etc. 199 

Warehouse— 

receipts for goods not received. 205e 

Warning— 

to rioters to disperse. 176 

Warrant See Arrest.— 

in case of contempt of court.57, 58, 164 

for delinquent witness or juror.57, 58 

service of, generally.129-133 

what is a sufficient.133, 167 

accused must be correctly named in.133.134 

when officer may or must arrest without.135, 136 

when private person may. 135,136 

confining prisoner till, procured. 136 

may be detained how long without warrant. 137 

requisites and form of, in criminal case. 167 

who may issue. 167 

may issue where, etc.167, 168 

return on.168, 169 

search warrant. ..178, 180, 222 

peace warrant.181-2 

failure to execute, penalty.185, 217 

of release of stray. 226 

Watchmen— 

appointment, etc., of. 7 

powers, duties, etc., of, generally. 27 

Water-craft— 

adrift, provisions as to.229, 230 

seizure of, for debt, etc.251, 252 

Weapons— 

carrying concealed..190, 205f 

“White-caps”— 

penalties against.176, 209 * 

White Slave Traffic.205c 

Widow- 

may hold what property exempt from execution.65-70 

Will- 

destroying, secreting, etc. 209 

Wine— 

as to adulterating.200, 202, 205 

Witnesses. See Contempt. 

attendance of, how secured, etc.17, 236-9 

when subpenaed, may demand fees. 50 

punishment of.58, 164, 191, 236-9 

attempting to corrupt.191 

Work-house— 

commitments to.172, 173 







































278 


INDEX. 


Writ. See Forms. 

defined, etc.. 3a 

original, etc. 35 

ministerial officer’s duties, risks, etc., as to. 

.9, 19-22, 39-41, 132, 133,146 

certified copy of, defined, etc. 37 

ministerial officer’s duties, risks, etc., as to, generally. 

9 19-22 39-41 

must serve where.19-22, 26-28, 35 

note time of receiving..22, 36 

and items of fees on. 41 

or receive no pay. 41 

must make certified copies of. 36 

serve by copy, when. 36 

serve how, generally. 36 

return of, generally.35-37 

certificate on copy of. 37 

must be executed when. 38 

as to blank spaces in. 38 

protects officer, when.9, 19-22, 39, 132, 133, 146 

when officer may obey or disobey. 39 

of justice and mayor, differ how. 40 

summons.42-48, 116,117,126* 

subpena.49-52 

summoning jury.53-55 

execution, issuance of, etc.59-64 

forms of, and of indorsements on.60-64 

of returns to. 95-99 

attachment.103-106, 108 

return of.114, 115 

notice to garnishee. 107 

replevin.116-124 

restitution. 127 

warrant of arrest. See Warrant. 

mittimus in criminal cases.169-173 

search warrant. 178f 

peace warrant... 181 


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